Rodriguez v. Union Pacific Railroad Co. ( 2022 )

1
Argued and submitted May 24, affirmed September 28, 2022, petition for review
denied January 19, 2023 (370 Or 714)
Cindy RODRIGUEZ,
Plaintiff-Appellant,
v.
UNION PACIFIC RAILROAD COMPANY,
a foreign corporation,
Defendant-Respondent,
and
GENESSE & WYOMING RAILROAD SERVICES, INC.,
a foreign corporation et al.,
Defendants.
Multnomah County Circuit Court
19CV18032; A175497
519 P3d 148
Plaintiff, who was seriously injured when she was struck by a freight train
while crossing a set of tracks in a marked crosswalk while looking at her cell
phone, appeals from a limited judgment for defendant Union Pacific Railroad
Company (UP), challenging the trial court’s granting of UP’s motion for sum-
mary judgment on her personal injury claim. She asserts that the trial court
erred in concluding that her claim is barred by federal preemption of claims relat-
ing to the design of a railroad crossing, because her complaint and the record on
summary judgment support a claim of negligence based on site obstruction by
vegetation, which is not subject to preemption. Held: The Court of Appeals held
that the asserted theory of negligence due to site obstruction is not reasonably
encompassed within the allegations of the complaint; thus, the trial court did not
err in granting UP’s motion for summary judgment based on federal preemption.
Affirmed.
Melvin Oden-Orr, Judge.
J. Randolph Pickett argued the cause for appellant. Also
on the opening brief were R. Brendan Dummigan, Kimberly
O. Weingart, Shangar S. Meman, Rachel M. Jennings, and
Pickett Dummigan McCall LLP. Also on the reply brief
were Shangar S. Meman, Rachel M. Jennings, and Pickett
Dummigan McCall LLP.
Thomas M. Christ argued the cause for respondent. Also
on the brief was Sussman Shank LLP.
2 Rodriguez v. Union Pacific Railroad Co.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
EGAN, J.
Affirmed.
Cite as 322 Or App 1 (2022) 3
EGAN, J.
Plaintiff appeals from a limited judgment for defen-
dant Union Pacific Railroad Company (UP), challenging the
trial court’s granting of UP’s motion for summary judgment
on her personal injury claim. Summary judgment is appro-
priate if there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law.
ORCP 47 C; Chapman v. Mayfield, 358 Or 196, 204, 361 P3d
566 (2015). That standard is satisfied when, viewing the
evidence in the record and all reasonable inferences that
may be drawn from it in favor of the nonmoving party, no
reasonable factfinder could return a verdict for the nonmov-
ing party. Id. We conclude that the trial court did not err in
granting UP’s motion for summary judgment and therefore
affirm.
Plaintiff was seriously injured when she was struck
by a freight train while crossing a set of tracks in a marked
crosswalk while looking at her cell phone. The tracks are
owned and maintained by UP. Plaintiff has no personal
recollection of what happened before she was hit by the
train. The record on summary judgment includes photos
that show a row of trees to the left of the tracks just outside
of the crossing. The record includes a video of the accident
taken by a camera mounted on the front of the locomotive.
Train personnel who viewed the video testified by deposition
that the trees could have blocked train operators’ views of a
pedestrian approaching the crossing from the southwest cor-
ner of the intersection where plaintiff entered the crossing.1
Plaintiff brought claims against UP, among others.2
Paragraphs 6 through 9 of plaintiff’s first amended com-
plaint included descriptions of the intersection, the tracks,
the warning systems, and the pedestrian crossing, not-
ing particularly the absence of “pedestrian safety gates,”
signage, or warning lights at the pedestrian crossing
1
The record on summary judgment also includes evidence that the crossing’s
gates and warning signals, including bells, and the train’s horn were fully oper-
ational and engaged at the time of the accident, but that plaintiff apparently did
not notice them. There was evidence that motorists stopped at the intersection
who did see the train and did hear the horns and bells were honking their own
horns and yelling to get plaintiff’s attention.
2
Claims against other defendants are stayed pending appeal.
4 Rodriguez v. Union Pacific Railroad Co.
itself.3 Plaintiff alleged that it is “only by chance” that the
crossing arms and flashing lights that are positioned and
aimed to be optimally viewed by motorists “are within
the line of sight of pedestrians.” Paragraph 13 of the com-
plaint included nine subparagraphs alleging conditions that
made the crossing unreasonably dangerous.4 Paragraph 15
3
Paragraph 7 alleges:
“There are no pedestrian safety gates or flashing warning lights in a
pedestrian’s line of sight and/or line of travel, to provide visual warning prior
to crossing any of these tracks. There are no audible warning signals for
pedestrians approaching the tracks to provide localized audible warning of
the approach of a train when crossing any of the tracks. There are bells that
ring when the crossing arms are lowered into position. These which are posi-
tioned to block the travel of motor vehicles but not pedestrians[.]”
4
Paragraph 13 alleged:
“The presence of one or more of the following conditions combined to
make the Crossing unreasonably dangerous:
“a) There were no gates specifically for pedestrians, as there were for
motor vehicles, that would prevent pedestrians from walking across one of
the grade crossing crosswalks at the Crossing when a train was approaching;
“b) The Crossing had crossing gates equipped with flashing red lights
that came down to block vehicular traffic, approaching from both directions
on S.W. Farmington Road and from both directions on S.W. Lombard Avenue,
from crossing the tracks as trains were arriving, but had no similar crossing
gates or flashing lights that would close, block access to, or otherwise impede
pedestrians from crossing the tracks as trains were arriving, and unequivo-
cally warn of the presence of approaching trains;
“c) The crossing arms and towers at the Crossing contained warning bells
that are designed to begin sounding an audible alarm approximately twenty
(20) to thirty (30) seconds before a train arrives at the Intersection and to
continue ringing as the train passes through the Crossing. These warning
bells contribute to the ambient background noise of the busy intersection;
“d) There were no swing gates or other forms of channeling for pedestri-
ans at the Crossing, which would force the person on foot to actively open the
gate, and which would delineate the most dangerous area of the pathway for
pedestrians;
“e) There was no signage on poles, no signage on the ground and no gates
delineating the combined pedestrian roadway and pedestrian grade crossing
on the western edge of the Crossing as there were on the two other pedestrian
grade crossings at the Intersection;
“f) The pedestrian grade crossing on the western edge of the Crossing
was both a pedestrian crossing over S.W. Farmington Road and an unmarked
pedestrian grade crossing, which would be confusing for pedestrians pro-
ceeding across it and which would increase the number of places that a
pedestrian would need to look for oncoming vehicular and train traffic;
“g) Lines of sight, from the perspective of a pedestrian about to cross
northward on the western edge of the crossing, were restricted to the
approach of trains from the southeast from the northern track to the north-
west, limiting a pedestrian from seeing an approaching train from either of
Cite as 322 Or App 1 (2022) 5
alleged six specifications of negligence.5
Before the hearing on defendant’s motion for sum-
mary judgment, plaintiff sought leave to file a second amended
complaint to add allegations to paragraphs 13 and 15
“relating to vegetation at the scene of the incident that
interferes with sight lines from the cab of the locomotive
those directions prior to proceeding across the Intersection, and was behind
a pedestrian heading northward across the combined roadway/grade cross-
ing when it opened up;
“h) This Crossing is unusual in nature - there are two separate rail tracks
that are parallel on the east side of the Intersection, but the tracks diverge in
the middle of the Intersection, with one going west, and one going north;
“i) A substantial change in the configuration of the crosswalks at the
Intersection occurred from approximately 2007 through 2009, during which
time a crosswalk was added on the west side of the Intersection, allowing
pedestrians to cross the rail tracks from the southwest quadrant to the north-
west quadrant. * * * [T]he new west-side crosswalk requires pedestrians to
cross the rail tracks owned, maintained, and/or controlled by defendant UP
and the G&W defendants at a more oblique angle than the older east-side
crossing, and to look back over their shoulders to determine whether a train
is approaching[.]”
5
Paragraph 15 of the complaint alleged that UP was negligent:
“a) In maintaining the Crossing in a dangerous condition for pedestrians;
“b) In failing to warn the public in general, and plaintiff in particular,
of the dangerous conditions that existed for pedestrians at the Crossing, as
described in ¶13 above, when defendants knew, or in the exercise of reason-
able care, should have known, of the unreasonably dangerous and reasonably
foreseeable, risk of harm to pedestrians of being hit by a train;
“c) In failing to provide any or adequate audible or visual warnings, spe-
cifically directed to pedestrians at or near the Crossing in general, and plain-
tiff in particular at the combined pedestrian roadway and pedestrian grade
crossing, to warn them of the approaching Train, at a time when defendant
UP knew, or in the exercise of reasonable care, should have known, of the
unreasonably dangerous and reasonably foreseeable, risk of harm to pedes-
trians of being hit by a train;
“d) In failing to maintain a physical barrier of any type to prevent pedes-
trians in general, and plaintiff in particular, from entering the crosswalk
when the Train was approaching;
“e) In failing to maintain swing gates, channeling, and/or signage for
pedestrians, that force the pedestrian to actively enter the crossing by open-
ing the gate, or going through the channels, and that would delineate the
most dangerous portion of the crossing, and provide an optimal opportunity
for pedestrians to look both ways before they cross at a time when approach-
ing trains were visible;
“f) In failing to maintain directional gates for pedestrians approaching
tracks that put pedestrians in a position to see trains approaching the inter-
section from all directions as pedestrians are traversing the combined pedes-
trian roadway and pedestrian grade crossing.”
6 Rodriguez v. Union Pacific Railroad Co.
to plaintiff, a pedestrian, as she was walking towards the
railroad crossing.” The trial court denied plaintiff’s motion.6
In its motion for summary judgment, UP contended
among other arguments that plaintiff’s claims are pre-
empted by the Federal Railroad Safety Act, 49 USC § 20106(FRSA). See Norfolk S. Ry. Co. v. Shanklin, 529 US 344, 120
S Ct 1467, 146 L Ed 2d 344 (2000) (holding that the FRSA,
by virtue of 23 CFR §§ 646.214(b)(3) and (4) (1999), preempts
state tort claims concerning a railroad’s failure to main-
tain adequate warning devices at crossings where federal
funds have participated in the installation of the devices).
In response, plaintiff acknowledged that under Shanklin,
claims relating to the design and construction of the cross-
ing and its warning devices are preempted. Plaintiff con-
tended, however, that claims based on a theory of common
law “premises liability” are possibly available. Plaintiff fur-
ther noted that the United States District court in Oregon
has held, in Murrell v. Union Pac. R. R. Co., 544 F Supp 2d
1138, 1154 (Dist Or 2008), that claims relating to sight-line
obstructions, including obstructions due to vegetation along
the rail line, are not preempted. Among the specifications
of negligence in the complaint, paragraph 15a alleged that
UP was negligent in “maintaining the Crossing in a danger-
ous condition for pedestrians[.]” Plaintiff contended in her
memorandum in opposition to UP’s motion that that alle-
gation was broad enough to encompass negligence relating
to the train operators’ line of sight and to allow evidence of
vegetation obstructing the train operators’ sight. Plaintiff
cited evidence in the record on summary judgment that she
contended would allow a finding that the train operators’
sight line was obstructed by vegetation—the line of trees—
near the tracks approaching the crossing. Plaintiff argued
that “the nature of the sight obstruction at the crossing and
whether a pedestrian or operator must come dangerously
close to causing an incident before being able to see the con-
ditions at the crossing are factual questions for the jury.”
6
The trial court denied plaintiff’s motion “because plaintiff’s counsel’s con-
ferral email to defendants’ counsel, which attached a copy of the proposed second
amended complaint, did not satisfy the conferral requirements of UTCR 5.010,
which requires an in-person or telephonic conferral.” The trial court’s ruling is
not challenged on appeal.
Cite as 322 Or App 1 (2022) 7
UP replied that the complaint’s factual allegation
relating to line of sight was in paragraph 13g, not para-
graph 15a, and that it related only to a pedestrian’s line of
sight,7 not to the train operators’ line of sight. UP further
replied that there were no allegations in the complaint relat-
ing to vegetation and reminded the court that it had denied
plaintiff’s request to amend the complaint to include such
allegations. Thus, UP argued, a claim based on obstruction
of the train operator’s sight line caused by vegetation was
not before the court.
At oral argument on the motion before the trial
court, plaintiff made no mention of either vegetation or the
sight line of the train operators but did briefly argue that
a claim based on obstruction of the pedestrian’s sight line
could survive summary judgment.
UP conceded that federal preemption would not
apply to a claim based on sight-line obstructions that were
not related to the design of the crossing, such as those
caused by vegetation or structures. But UP argued that,
in the context of the complaint as a whole, which did not
mention the presence of vegetation, plaintiff’s allegation at
paragraph 13g must be understood to relate only to sight-
line restrictions from the design of the crossing, rather than
obstructions, and was therefore preempted. Additionally,
UP pointed out that the complaint included no allegation
relating to the obstruction of the train operators’ sight line.
The court said that it had watched the video record-
ing of the accident and that it seemed to show that, because
of the presence of vegetation, plaintiff would not have been
able to see the train coming until she was almost through
the intersection. The court asked what to make of that evi-
dence. UP’s counsel answered that, in the absence of an alle-
gation relating to sight-line obstruction caused by vegeta-
tion, the evidence was irrelevant. Additionally, UP’s counsel
argued that, in light of evidence in the record that plaintiff
was looking at her cell phone at the time she stepped into
7
Paragraph 13g alleged that the crossing was unreasonably dangerous
because “[l]ines of sight, from the perspective of a pedestrian about to cross north-
ward on the western edge of the crossing, were restricted to the approach of trains
from the southeast from the northern track to the northwest[.]” (Emphasis added.)
8 Rodriguez v. Union Pacific Railroad Co.
the crossing, it was pure speculation whether plaintiff’s
view of the train would have been blocked by vegetation. UP
argued that the court should disregard the video evidence.
The trial court granted UP’s motion for summary
judgment. In its letter opinion, the court rejected plaintiff’s
contention that a claim based on common law “premises lia-
bility” would be distinct from the state law tort claims that
are subject to preemption. The court also rejected plain-
tiff’s contention that the complaint alleged a claim based on
sight-line obstruction. The court explained that, although
plaintiff’s memorandum in opposition to UP’s motion had
made reference to evidence relating to the train operators’
sight line, the complaint itself made no allegations with
respect to train operators’ line of sight. The court further
concluded that the specification of negligent maintenance at
paragraph 15a did not encompass a sight-line theory of neg-
ligence. The court concluded:
“Based on the Court’s review of the Amended Complaint,
only issues regarding the pedestrian’s line of sight are
alleged. Thus, Plaintiff’s arguments regarding the train
operators’ visibility and line of sight fail to raise an issue
of material fact.”
On appeal, plaintiff contends that the trial court
erred in granting UP’s motion for summary judgment. Plain-
tiff contends that there is a strong presumption against
federal preemption, and that, even in the absence of a spe-
cific allegation in the complaint relating specifically to the
presence of vegetation, the allegations of the complaint,
read as a whole—in particular, paragraph 13a, alleging
that the pedestrian’s line of sight was restricted, and the
general allegation at paragraph 15a that UP was negligent
in “maintaining the Crossing in a dangerous condition for
pedestrians”—are broad enough to state a theory of liability
that vegetation impaired the sight line of pedestrians and
train operators,8 and that the record on summary judgment
in fact includes evidence of an impaired sight line of train
operators due to the presence of the trees.
8
At oral argument, plaintiff’s counsel acknowledged that, based on the alle-
gations of the complaint, “the concern is that the pedestrian could not see the
train.” (Emphasis added.)
Cite as 322 Or App 1 (2022) 9
UP responds that plaintiff’s whole argument on
appeal is in support of a theory of liability that is not in the
case. UP argues that the first amended complaint cannot
reasonably be construed to include a theory of liability based
on sight-line obstruction by vegetation, pointing out that the
trial court expressly denied plaintiff’s motion to amend the
complaint to allege such a theory. UP argues that plead-
ings matter and that an absence of allegations relating to
vegetation precludes liability on that theory. See Kiryuta v.
Country Preferred Ins. Co., 273 Or App 469, 473-74, 359 P3d
480 (2015), aff’d, 360 Or 1, 376 P3d 284 (2016) (“In this state,
a party’s pleadings matter, and ‘[i]t is a theory long in use
in the practice of law that the pleadings declare and control
the issues to be determined and the relations that the par-
ties bear to each other.’ ” (quoting Warner v. Synnes et al., 114
Or 451, 459-60, 235 P 305 (1925)).
We agree with UP. It would be an unreason-
able extension of the pleadings to conclude that the first
amended compliant encompasses the theory of liability
that plaintiff asserts on appeal—that plaintiff’s view of an
oncoming train was obstructed by vegetation just outside of
the crossing. Despite the complaint’s detailed description of
the conditions of the intersection and the crossing, and the
nine ways in which the crossing was alleged to be unrea-
sonably dangerous as described in paragraph 13, there is
no mention of the presence of vegetation near the crossing
or to the obstruction of pedestrians’ views by vegetation
near the crossing. Reading the complaint as a whole, the
allegation of ultimate fact at paragraph 13g that a pedes-
trian’s line of sight was “restricted” must be read to refer
to restrictions caused by the many “unreasonably danger-
ous” conditions of the crossing itself, and not an obstruction
caused by vegetation outside of the crossing. For example,
paragraph 13i alleges that the crossing where plaintiff was
injured requires pedestrians to enter the crossing at “a more
oblique angle than the older east-side crossing, and to look
back over their shoulders to determine whether a train is
approaching.” Additionally, there is no specification of negli-
gence based on the presence of vegetation near the crossing.
Paragraph 15a alleges negligence in the maintenance of the
crossing, not in conditions around the crossing.
10 Rodriguez v. Union Pacific Railroad Co.
We conclude that sight-line obstruction caused by
the presence of vegetation near the crossing is a theory of lia-
bility that is different from the theories of liability described
in the complaint, which are based on the conditions of the
crossing itself, not sight-line obstructions due to vegetation
outside of the crossing. Plaintiff’s arguments and cited evi-
dence relating to the presence of vegetation near the cross-
ing that obstructed views present a theory that is outside of
the pleadings.
Summary judgment does not present an opportu-
nity to assert a theory of liability that is not in the plead-
ings. Permapost Products Company v. Osmose, Inc., 200 Or
App 699, 705, 116 P3d 909 (2005) (explaining that, although
a party may add a legal theory at summary judgment,
under ORCP 23 “we cannot treat the pleadings as amended
to include plaintiff’s [new legal theory] unless plaintiff
obtained the consent of the court or of defendant”). Thus,
we agree with the trial court that plaintiff’s arguments and
evidence concerning sight-line obstruction caused by vege-
tation cannot be considered.
Finally, we are not aware of any authority in sup-
port of plaintiff’s argument that common law “premises lia-
bility” is a theory of negligence that would provide an excep-
tion to the preemption of federal law relating to the design of
railroad crossings. We conclude that the trial court did not
err in granting UP’s motion for summary judgment.
Affirmed.