United States District Court, W.D. Arkansas, Hot Springs Division
JERRY L. DONALDSON PLAINTIFF
THE KANSAS CITY SOUTHERN RAILWAY COMPANY DEFENDANT
OPINION AND ORDER
HOLMES, III CHIEF U.S. DISTRICT JUDGE
the Court is Defendant Kansas City Southern Railway
Company's (“KCSR”) motion for summary
judgment (Doc. 11), Plaintiff Jerry L. Donaldson's
response (Doc. 16) and supplemental response (Doc. 21),
KCSR's reply (Doc. 22), and the parties' supporting
documents. For the reasons set forth below, KCSR's motion
will be granted.
April 16, 2013, Mr. Donaldson alleges that he was operating a
dump truck on Highway 246 in Vandervoot, Arkansas, hauling
stone to Shady Lake, Arkansas, when he crossed railroad
tracks owned and maintained by KCSR. Mr. Donaldson first
crossed the tracks on his way to Shady Lake, with his truck
pulling a trailer loaded with approximately 20 tons of field
stone. He recalled that the tracks looked “real
rough” and “the blacktop was buckled up, bowed
up, rippled up…” (Doc. 11-2, pp. 17-18). On Mr.
Donaldson's second time crossing the tracks after having
dropped off the stone at Shady Lake, he was not wearing a
seatbelt but claims he slowed down to approximately ten miles
per hour when the “truck bounced, and I bounced
up… and my head, I guess, hit-almost hit the top of
truck cab. And the-it was like I'm coming down, and there
was like a jolt, you know, just caught me, just jammed
me.” (Id., p. 20). He claims that KCSR was
negligent in their maintenance of the railroad crossing. As a
result of the incident, Mr. Donaldson claims to have suffered
permanent back injury to the point of being permanently
disabled, with associated medical bills and pain and
motion for summary judgment argues that Mr. Donaldson has not
presented any proof that KCSR breached a duty of care or
shown any proof of causation between the alleged negligence
and the claimed injuries. Plaintiff counters that contrary to
KCSR's supporting affidavits claiming the railroad was in
good condition at the time of the incident, Mr.
Donaldson's deposition gives specific details as to how
the railroad tracks were not in good condition. Mr. Donaldson
contends that this creates a genuine issue of material
dispute such that summary judgment is inappropriate.
party moves for summary judgment, it must establish both the
absence of a genuine dispute of material fact and that it is
entitled to judgment as a matter of law. See Fed. R.
Civ. P. 56; Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986); Nat'l Bank
of Commerce of El Dorado, Ark. v. Dow Chem. Co., 165
F.3d 602 (8th Cir. 1999). In opposing a motion for summary
judgment, Plaintiffs may not rest on allegations or denials
in their pleadings but must “set forth specific facts
showing that there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986). In order for there to be a genuine issue of material
fact, the non-moving party must produce evidence “such
that a reasonable jury could return a verdict for the
nonmoving party.” Allison v. Flexway Trucking,
Inc., 28 F.3d 64, 66-67 (8th Cir. 1994) (quoting
Anderson, 477 U.S. at 248 (1986)). Only facts
“that might affect the outcome of the suit under the
governing law” need be considered. Anderson,
477 U.S. at 248. “[T]he non-movant must make a
sufficient showing on every essential element of its claim on
which it bears the burden of proof.” P.H. v. Sch.
Dist. of Kan. City, Mo., 265 F.3d 653, 658 (8th Cir.
2001) (quotation omitted).
diversity case, the Court applies Arkansas substantive law.
Murray v. Greenwich Ins. Co., 533 F.3d 644, 648 (8th
Cir. 2008) (citing Erie R.R. v. Tompkins, 304 U.S.
64, 78 (1938)). “Under Arkansas law, in order to
prevail on a claim of negligence, the plaintiff must prove
that the defendant owed a duty to the plaintiff, that the
defendant breached the duty, and that the breach was the
proximate cause of the plaintiff's injuries.”
Fordyce Bank & Trust Co. v. Bean Timberland,
Inc., 251 S.W.3d 267, 270-71 (Ark. 2007). “The
burden of proof is always on the party asserting negligence,
as negligence is never presumed.” AutoZone v.
Horton, 192 S.W.3d 291, 295 (Ark. App. 2004).
issue of whether a duty [of care] exists is always a question
of law, not to be decided by a trier of fact.”
Crenshaw v. Arkansas Warehouse, Inc., 379 S.W.3d
515, 516 (Ark. App. 2010) (citation omitted). The duty owed
by KCSR to Mr. Donaldson is outlined in Arkansas Code
Annotated § 27-67-214. Under that statute:
It shall be the duty of all railroad companies and the owners
of tramroads whose lines intersect or cross any of the
highways of the state to improve that part of the roadway
between their tracks and to the end of the cross ties on each
side with the same material, whatever practicable, with
the same foundation and surface as that in the adjoining
portions of the roadway and to maintain such crossings in a
good state of repair.
Ark. Code Ann. § 27-67-214(b) (emphasis added).
Accordingly, KCSR's duty is limited to improving only the
portion of the roadway between its tracks and to the end of
the cross ties on both sides. See Untiedt v. St. Louis Sw.
Ry. Co., 440 S.W.2d 251, 255 (Ark. 1969); Cartwright
v. Burlington N. R. Co., 908 F.Supp. 662, 667 (E.D. Ark.
Donaldson has failed to produce any evidence to meet his
burden to show that KCSR breached its duty with regards to
the area between the tracks and the end of the cross ties on
each side. As the only witness to the alleged incident, Mr.
Donaldson could not recall or describe a number of
considerations vital to the success of his claim. KCSR's
duty is limited to the area between the cross ties of the
tracks. Yet, Mr. Donaldson could not recall seeing any of the
cross ties on the day of the alleged incident. (Doc. 11-2, p.
18) (“I don't remember seeing no cross ties
there.”). Mr. Donaldson described the crossing as
“rough” as a result of the asphalt being
“above the tracks” and “buckled up, bowed
up, rippled up.” (Doc. 11-2, pp. 17-18). The state of
the asphalt was the only condition that led Mr. Donaldson to
determine that the tracks were negligently maintained, but he
could not recall where in relation to the area for which KCSR
owed him a duty of care that the asphalt was in such a state.
Q: Other than the blacktop being higher than the tracks, did
you see any other conditions that led you to believe it was
going to be rough going across the crossing?
A: Not that I can remember.
Q: The high points in the asphalt, can you tell us where in
relation to the cross ties for each set of tracks you ...