Texas SC reverses $5M verdict against Union Pacific

By The SE Texas Record | Oct 29, 2009

AUSTIN � Reflective tape on a railroad crossing counts as a warning device, the Texas Supreme Court held when it wiped out a $5.1 million jury verdict against Union Pacific.

AUSTIN – Reflective tape on a railroad crossing counts as a warning device, the Texas Supreme Court held when it wiped out a $5.1 million jury verdict against Union Pacific.

The justices ruled on Oct. 23 that Harris County District Judge Caroline Baker should not have taken the railroad to trial for the death of motorist Billy Limmer in 1994.

Federal law preempted his family's claim because federal funds paid for reflective tape on the crossing, the justices decided.

At trial the railroad chose not to argue preemption, preferring to let the judge resolve the question after the jury returned the verdict.

Baker denied preemption and entered judgment on the verdict.

Appeals judges in Houston rejected the preemption claim but discarded the verdict on other grounds and remanded the case for a new trial.

Neither side wanted that, so both sides appealed to the state Supreme Court. Widow Patricia Limmer sought to preserve the verdict and Union Pacific sought to erase it.

Limmer argued that reflective tape doesn't count as a warning device because it merely reflects light and doesn't tell motorists to stop, look or turn.

The justices disagreed.

"Markings are specifically mentioned in the federal regulations as traffic control devices," Justice Nathan Hecht wrote.

"More importantly, the use of retroreflective strips on crossbuck posts and blade backs is designed to reflect light back at motorists, to attract attention and provide an enhanced warning," he wrote.

The justices also absolved Union Pacific of failure to provide a clear view around a huge gravel pile near the crossing.

The accident happened in Thorndale, on Front Street.

Witnesses saw an eastbound train approaching at 40 to 50 miles per hour. They heard its horn and they saw a pickup drive slowly into its path.

Limmer died instantly.

His family sued, and jurors found Union Pacific negligent for failing to provide warning devices and failing to clear the view.

Jurors set damages at $6 million and held Union Pacific 85 percent liable.

Union Pacific then pleaded to Baker that federal railroad law preempted the claim because Union Pacific improved the crossing with federal funds.

The railroad had obtained reflective strips with federal funds and taped the strips to the crossing under a safety program the Texas legislature enacted in 1989.

Baker rejected the defense, without setting down any findings of fact.

Appeals judges agreed with Union Pacific and then disagreed, declaring the evidence on federal funding inconclusive.

They decided that Baker made an error in presenting the gravel pile as a separate jury question, and they sent the case back to her for a new trial.

Their decision sparked a double appeal that resulted in victory for Union Pacific.

"Retroreflective tape attached to a crossbuck is certainly a marking used to warn traffic of railroad crossings," Hecht wrote.

"The point of the 1989 program was that the addition of retroreflective tape to crossbucks would provide traffic with an additional, different warning of railroad crossings, making them more visible to motorists," he wrote.

He wrote that fatalities at railroad crossing dropped 56 percent from 1980 to 2004.

"Public policy does not require us to disturb a positive regulatory scheme," he wrote.

As for the gravel pile, Hecht wrote that a railroad has no duty to clear its right of way of things that might obstruct sight at a crossing.

He wrote that "a railroad's duty is to give adequate warning of approaching trains, given whatever obstructions or other conditions exist."

No one dissented.

Mike Hatchell represented Union Pacific. Deborah Hankinson, David Gunn, Carl Crow, Russell Post and Elana Einhorn represented Limmer.

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