$11 M verdict in Union Pacific wrongful death trial on appeal

David Yates Jan. 21, 2009, 3:14pm

In November 2007, the Record reported on a wrongful death trial in which jurors found Union Pacific Railroad Company negligent for failing to install safety devices at a crossing where a woman was killed, awarding Derrick Cezar and his daughter almost $11 million in damages.

Four months later the railway's attorneys appealed the massive verdict, arguing the law clearly shows Union Pacific had no liability in maintaining the crossing.

On Jan. 16 the case was set for submission on oral argument, which will be heard by justices seated on Texas' Ninth Court of Appeals on March 5, a year following the appeal.

During the trial, jurors were charged with deciding whether Patsy Ardoin, the girl's mother and Cezar's fiance, negligently failed to stay stopped at a railroad crossing or if it was Union Pacific's inadequate safety precautions that caused Ardoin's vehicle to be struck by a train.

The collision killed Ardoin and left the couple's daughter with a broken neck.

Confined to a wheel chair for the rest of her life, jurors wanted to make sure Cezar's daughter would be taken care of - awarding the young girl $7 million for past and future medical expenses and loss of earning capacity.

Cezar filed suit against Union Pacific in February 2006, claiming the railroad was negligent and responsible for the incident because the railroad crossing lacked electric gates and lights.

According to lawsuit documents and trial testimony, the incident occurred in Vinton, La., at a "passive" railroad crossing known as Eddy crossing on July 22, 2005.

A passive railroad crossing does not have electric gates, signals or sirens to notify motorists of approaching trains. Most passive crossings only have stop signs and railroad signs.

Throughout the trial of Derrick Cezar et al vs. Union Pacific Railroad, defense lawyers argued the railroad lacked the authority to modernize the crossing, stressing that the law was on Union Pacific's side and jurors had a duty to set aside any feelings of sympathy they may garner for Cezar and his daughter.

The plaintiffs argued that had the crossing been equipped with gates and lights, Ardoin would still be alive today and Cezar's daughter would not be confined to a wheelchair for the rest of her life.

Conversely, defense attorney Douglas Poole had argued that equipping the crossing with electric gates was the responsibility of the city of Vinton and the Louisiana Department of Transportation, and even if Union Pacific desired to upgrade the crossing, the company lacked the authority to make it happen.

The plaintiffs countered by arguing Union Pacific has a policy of upgrading all passive crossings and the very federal and state laws the company was hiding behind also permitted the company to act on its own accord if it deems a crossing to be a "dangerous trap" or a crossing where many accidents occur.

A dangerous trap is a railroad crossing that is federally mandated to be equipped with electric gates and signals because the crossing's visibility is poor.

Poole also argued that the train sounded its horn before approaching the crossing and had the legal right-of-way, and that Cezar's fiance was negligent for failing to stay stopped until the train passed.

"(Ardoin) had stopped at the crossing for several seconds, and then for reasons we will never know, she pulled out in front of the train… (in) broad daylight," Poole said during the trial.

Jurors found Union Pacific 65 percent negligent, the Louisiana Department of Transportation 20 percent negligent, and Ardoin 15 percent negligent.

Although the incident occurred in Louisiana, the court allowed the Texas venue because a substantial part of the events and occurrences that are the basis of the suit took place and originated in Jefferson County. Union Pacific had requested the case be transferred to federal court, but the request was denied.

Poole is an attorney for the McLeod Alexander Powel & Apffel law firm.

The plaintiffs are represented by the Arnold & Itkin law firm.

Appeals case No. 09-08-00092-CV
Trial case No. B176-429

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