On September 1 the Texas Supreme Court granted review of a San Antonio Court of Appeals decision reversing a summary judgment in favor of the railroad company in a wrongful death claim.
Lonestar Resources, Inc., Ezra Alderman Ranches, Inc., and Union Pacific Railroad Company v. Elsa Prado, Individually and as Representative of the Estate of Rolando Prado, Jr., Deceased, and as Next Friend of A.P. Minor; Elizabeth Prado; Rolando Prado; and Maria Prado No. 22-0431; 04-19-00543-CV; delivered July 28, 2021) arose from a fatal collision between Prado, an employee of an oilfield subcontractor working on Lonestar’s wellsite, and a Union Pacific train. The collision occurred at a private road and crossing owned by the ranch. A stop sign and crossbuck warning marked the crossing. As Prado crossed just before sunset, a train struck his truck, resulting in Prado’s death. The Prados filed wrongful death and survival actions against the railroad, Lonestar, and the ranch. The trial court granted each defendant’s summary judgment motion and entered a take-nothing judgment against plaintiffs. Plaintiffs appealed.
The court of appeals affirmed in part and reversed in part. First, plaintiffs challenged the trial court’s ruling that Union Pacific’s assertion that the Federal Railroad Safety Act (FRSA) pre-empted plaintiffs’ negligence claim for failure to issue a slow order. As the court of appeals observed, “FRSA generally preempts tort claims based on a failure to slow a train, travelling at or under federal speed limits, based on the general dangers associated with trains and railroad crossings” (citations omitted). Plaintiffs argued that pre-emption did not apply because the private crossing at issue presented “[a] specific, individual hazard … that could cause an accident to be imminent, rather than a generally dangerous condition” (e.g., a child or motorist standing on the tracks). Specifically, they asserted, there had been at least four previous accidents at the crossing (one a fatality accident), the crossing had a high rate of traffic, and a curvature in the road leading to the track made the train harder to see, thus creating a “specific, individual hazard.” The court of appeals rejected this argument, holding that the plaintiffs’ negligence claim “is based on the general hazards typically associated with a railroad crossing,” and, absent evidence that “the train engineer or conduct knew was aware of a truck or person on the tracks, or any other unique condition of the [crossing],” was thus pre-empted.
Plaintiffs next contended that Union Pacific failed to comply with its common law duty “to use extraordinary means to warn of an extra-hazardous railroad crossing.” Such extraordinary means may “include signal bells or lights on the crossing, lights on the train cars, or flatting at the crossing,” while a crossing may be “extra-hazardous” on account of trains travelling fast and at high frequency, as well as obstructed views. Plaintiffs introduced some evidence of obstruction, high frequency, and high speed. Union Pacific countered that “the controlling standard requires considering a driver using ordinary care, who would stop at the stop sign and keep a proper lookout” (the evidence of the train engineer indicated that Prado ran through the stop sign onto the tracks). The court rejected this standard based on plaintiffs’ expert witness testimony, which “provided detailed factual explanations of how the surroundings obstruct a driver’s view of oncoming trains,” as well as the frequency of traffic and number of prior accidents. According to the court, Union Pacific’s knowledge of the high accident rate “raise[d] a fact issue about the adequacy of the signage.” As to whether Prado exercised ordinary care, that is a fact question for the jury to decide. The court thus concluded that “reasonable jurors could disagree as to whether the  crossing was extra-hazardous” and reversed the trial court’s grant of summary judgment on this issue.
The court turned next to plaintiffs’ premises-defect claim against Lonestar, the oil and gas operator that contracted with Prado’s employer. Lonestar argued that because it did not own or control the crossing and the hazards of trains at the crossing were open obvious, it was not liable. Plaintiffs countered that Lonestar exercised actual control on the basis that it held a railroad crossing safety meeting” after the accident and, at Union Pacific’s request, hired a flagger at the crossing. According to plaintiffs, this evidence “show[ed] Lonestar and Union Pacific exercised joint actual control before the accident.” The court, however, noted that although Lonestar’s employees and contractors are permitted to use the road, “no evidence shows this permission for ingress and egress allowed those subcontractors to erect warning signs or to place flaggers on [the ranch’s] private property.” Moreover, no evidence showed that Union Pacific or the ranch directed Lonestar to take remedial measures before the accident or that Lonestar took unilateral steps to do so after the accident. The court further rejected plaintiffs’ contention that the inadequacy of signage constituted the premises defect, since there was no evidence that such signage was in fact inadequate, hidden, or otherwise invisible to drivers. It thus upheld the trial court’s grant of summary judgment to Lonestar on the premises issue.
Finally, the court reached plaintiffs’ negligent-failure-to-warn claim against the ranch. As the court determined that Prado was a licensee rather than an invitee on the property, the ranch “owe[d] a duty not to injure the licensee willfully, wantonly, or through gross negligence, and, in cases in which the owner has actual knowledge of a dangerous condition unknown to the licensee, a property owner owes a licensee the duty to warn or make safe the dangerous condition” (citations omitted). Citing the same evidence it relief on to overturn summary judgment for the railroad, the court likewise found that “[t]he evidence of prior accidents permits a reasonable inference that the condition was not clearly marked” (citations omitted) and, consequently, raised a fact issue as to whether the ranch cross posed an unreasonable risk of harm. It found further that the ranch, according to the testimony of its corporate representative, was aware of at least one prior accident at the crossing and knew about the “conditions” at the crossing. Based on this evidence, the court concluded that a fact issue regarding the adequacy of existing warnings and proximate causation had been established and reversed summary judgment in favor of the ranch.
Union Pacific’s petition for review takes the court of appeals to task for finding that a railroad crossing, identified by a stop sign and standard crossbuck sign, was “extra-hazardous” despite the undisputed evidence that the stop sign was plainly visible and that “a motorist who stops at the stop sign ‘can see a train that’s in a hazardous proximity from either direction without difficulty.’” It also points out that Texas has thousands of such crossings on private property in rural areas and that “railroads depend on the proper application of the extra-hazardous crossing doctrine to accommodate landowners and keep private crossings open without incurring massive litigation risks.”
From a broader perspective, this case bears watching for, at least in our view, the court of appeals’ determination that the landowner could be held liable for failing to warn about a rail crossing over which it had no control. This begs of the question not only of the practicality of providing such a warning and what form it should take, but whether private landowners have any business getting into the railroad’s business. If every landowner with a private road that crosses a railroad track could be held liable for an accident in this manner, then we can expect it to become very difficult to insure for that potential liability.
SCOTX has scheduled oral argument on November 29.