Judge Thomas Falls, Case 19STCV28158 2022-08-03 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling. Counsel may submit on the tentative rulings by calling the clerk in Dept. R at 909-802-1117 before 8:30 the morning of the hearing.

(1) Defendant Union Pacific Railroad Company’s MOTION FOR SUMMARY JUDGMENT is GRANTED.

(2) Defendant the City of El Monte’s MOTION FOR SUMMARY JUDGMENT is GRANTED.

Plaintiff Cielo Rosado (“Plaintiff”) alleges on September 28, 2020, she sustained injuries after being struck by a train near Santa Anita and the Wash near Valley Boulevard in the City of El Monte. “Plaintiff gained access to the incident site through a fence. The fence had served as a thoroughfare to the incident site and is commonly used as a means of access to the incident site.” (Complaint ¶11.)

On August 12, 2019, Plaintiff filed a complaint, asserting causes of action against Defendants City of El Monte (“City”), Union Pacific Railroad Company (“Union” or “UPRC”) and Does 1-10 for:

On August 31, 2020, this action was transferred from Department 32 of the Personal Injury Court to this department.

On October 2, 2020, Plaintiff filed two “Amendment[s] to Complaint,” wherein Victor Louis Vine was substituted in lieu of Doe 1 and Gregory E. McElfrish was substituted in lieu of Doe 1.

On June 10, 2021, City dismissed its cross-complaint against LACFCD and County, without prejudice.

On October 28, 2021, Defendant UPRC filed the instant Motion for Summary Judgment (“MSJ”).

On November 12, 2021, the City dismissed its entire cross-complaint against Defendant UPRC.

That same day, the City filed a ‘Joinder in Union Pacific Railroad Company’s MSJ.’

On June 30, 2022, the City filed a ‘Notice of Joinder of Defendant City of El Monte in Union Pacific Railroad Company’s Reply to Plaintiff’s Opposition to Motion for Summary Judgment or Adjudication and Joinder in Supporting Papers.’

On July 11, 2022, Plaintiff filed an Objection and Request to Strike both Defendants’ Replies to Plaintiff’s Response to its Separate Statement.[1]

Considering the similar facts and arguments, the court has consolidated the motions.

The law of summary judgment provides courts “a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) In reviewing a motion for summary judgment, courts employ a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)

A moving defendant bears the initial burden of production to show that one or more elements of the cause of action cannot be established or that there is a complete defense to the cause of action, at which point the burden shifts to the plaintiff to make a prima facie showing of the existence of a triable issue. (Code Civ. Proc., § 437c, subd. (p)(2).) “The motion shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (b)(1).)

The opposing party may not rely on the mere allegations or denials of the pleadings, but instead must set forth the specific facts showing that a triable issue exists as to that cause of action or a defense thereto. (Aguilar, supra, at p. 849.) Specifically, “[t]he opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (Code Civ. Proc., § 437c, subd. (2).)

All objections sustained except for objection No. 9, Plaintiff’s declaration. The court will address some notable objections.

Objection No. 1: Declaration of Chijioke Ikonte in Support of Plaintiffs Opposition to Union Pacific's Motion for Summary Judgment/Adjudication

The declaration of Plaintiff’s Counsel Chijioke O. Ikonte fails in its entirety because the declaration is unsigned. (See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 943, quoting Code Civ. Proc., § 2015.5 [“[T]he Code of Civil Procedure also allows a court to consider, in lieu of an affidavit, certain written declarations. To qualify as an alternative to an affidavit, a declaration must be signed and recite that the person making it certifies it to be true under penalty of perjury. The document must reflect the date and place of execution, if signed in California, or recite that it is executed ‘under the laws of the State of California’ . . . The purpose of the statutory references to affidavits and declarations is to enhance reliability.”].)

Therefore, the first objection is SUSTAINED. Notably, by implication, this precludes Plaintiff’s reliance on Defendant City of El Monte's Separate Statement of Undisputed Facts.[2]

Objection No. 9 As to Plaintiff’s declaration, Defendant Union Pacific objects to its entirety for the following reason:

During Plaintiff's deposition she testified that she has no memory of how she accessed the railroad property, and admits that she knew it was dangerous to be on the bridge. (See UMF 4-7, Schroeder Decl. ¶3, Ex. G.) Then, nine months after her deposition, and on the date her opposition was due, Plaintiff submits a self-serving declaration in support of her opposition, declaring that on the day of the incident she entered the railroad through the Gibson Mariposa Pari in the City of El Monte and that she did not hear the train's horn.

(Reply p. 3, see also generally ‘Union Pacific Railroad Company's Response To Plaintiff's Statement Of Undisputed Material Facts’ [‘where a party's self-serving declarations contradict credible discovery admissions and purport to impeach that party's own prior sworn testimony, they should be disregarded on a motion for summary judgment as it does not raise substantial evidence of a triable issue of fact); Collins v. Hertz Corp., 144 Cal.App.4th 64, 75 n. 5, 79 (2006) (a declaration contradicting deposition testimony is insufficient to defeat summary judgment when objection to evidence raised).”].)

Here, however, a review of Exhibit G—Plaintiff’s deposition—does not provide any concession from Plaintiff that she did not remember the incident. In fact, during the deposition she made various statements about the day in question.[3]

Therefore—as the deposition does not contradict Plaintiff’s declaration—the court OVERRULES Defendant Union Pacific’s evidentiary objection No. 9; thereby, Plaintiff’s declaration, even if self-serving, is admissible.

A plaintiff must prove a “legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury.” (United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 594.)

Plaintiff asserts her negligence cause of action based upon the allegations that:

- “UPRC knew or should have known that the engineer and the other members of the crew were incompetent or unfit to operate, engineer and/or drive the subject train;”

- “UPRC breached its duty to ensure that the train horn was properly sounded to warn of the train's approach;”

- “UPRC breached its duty to slow or stop the train to avoid a specific individual hazard at the incident site;”

Under the “negligent entrustment” doctrine, one who entrusts a motor vehicle to another who is known, or from the circumstances should be known, to be incompetent or unfit to drive may be liable for injuries inflicted by the driver that were proximately caused by the driver’s incompetence. (Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 647) (emphasis added). Negligent entrustment liability is not vicarious or imputed liability; rather, the driver is charged directly with his own negligence. (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 567-569.) However, “[i]t has been stated that in order to impose liability for negligent entrustment, the lending owner must know, or from facts known to him should know, that the entrustee driver was intoxicated, incompetent, or reckless.” (Hartford Accident & Indemnity Co. v. Abdullah (1979) 94 Cal.App.3d 81, 91.).

Defendant argues that its crew was not negligent and was operating the train with a safe speed. In support of this position, Defendant UPRC relies on the evidence of Bryan Scooter (“Scooter”).[5]

Here, Scooter analyzed the Event Data Recorder (“EDR”) data to develop a timeline of the train engineer’s operation of the train including its speed, horn and bell application, braking, and other information.

Based thereon, as to the speed limit, Scooter states that the train was going 59 mph, which is within the 60-mph speed limit proscribed by federal law.[6]

As to the horn, “the train horn was tested by ESi Test Operator Mark Pollan in the manner required by 49 C.F.R. § 229.129(c) and produced an average 103.0 decibels (dB(A)) 100 feet in front of the locomotive which is compliance with the noted regulation.” (Scooter Decl., ¶21.) Therefore, the horn did provide sufficient audible warning and was sounded once Plaintiff’s presence near the tracks was evident. (See Scooter Decl., ¶¶14, 15 [“Engineer McElfresh began sounding the train horn in response to Ms. Rosado’s and another unidentified male individual’s presence on the rail bridge approximately 700 feet away from their location. Engineer McElfresh continued to sound the horn for approximately eight seconds until Plaintiff was struck”].)

As for braking on time, Scooter explains that “the initial sighting was not an emergency in and of itself because the distance and curvature of the track prevented the crew from determining whether Ms. Rosado was at risk of being struck . . . even if maximum braking was applied immediately upon seeing [Plaintiff], the train could not physically stop or slow sufficiently to avoid or lessen the severity of the collision” because “[Plaintiff] appeared to be behind the male individual with a bicycle and running on the outer side of the bridge and clear of the locomotive. AT THE LAST MOMENT she attempted to pass the male individual with the bicycle by moving inward on the bridge and INTO THE PATH of part of the locomotive that extends beyond rails.” (Scooter Decl., ¶¶16-18) (emphasis and capitalization added).

Indeed, a review of the photos corroborates Scooter’s declaration. (Table of Evidence in Support of Motion for Summary Judgment or Adjudication (“Evidence”), Exs. B, C.) As such, it appears indisputable that it was not the train engineer’s alleged negligence but Plaintiff’s own decision to move inward onto the path despite the presence of the train.

Therefore, Defendant UPRC has provided admissible evidence that the EDR data from the locomotive confirms that Union Pacific's crew maintained a proper lookout by operating the train in compliance with the speed limit, sounded the horn once Plaintiffs presence near the tracks was evident, and took appropriate action to bring the train to a safe stop.

Plaintiff relies on the expert evidence of William R. Hughes (“Hughes”). Hughes is self-employed at Hughes Consulting and previously worked for Norfolk Southern Railroad as a Lieutenant where he engaged in “railroad police work.” His tasks included “erect[ing] signage and fencing” and training other “railroad police officers.”

Here, while Hughes arguably has expertise in rail safety, signage and fencing, trespasser/pedestrian safety, he is not an expert to opine on the issues at stake. For example, he is opining on issues outside of his expertise by reaching conclusions on matters about the purpose and use of horns, brakes, whether Plaintiff crossed the tracks out of necessity, and UPRC’s crew's conduct. The basics of becoming a qualified expert is “not because a man has a reputation for superior sagacity and judgment, and power of reasoning, that his opinion is admissible. * * * It is because a man's professional pursuit, his peculiar skill and knowledge in some department of science, not common to men in general, enable him to draw an inference, where men of common experience, after all the facts proved, would be left in doubt.” (Vallejo & N.R. Co. v. Reed Orchard Co. (1915)169 Cal.5th 545, 571) (emphasis added).

Therefore—considering that Hughes does not have the experience nor study to have peculiar knowledge upon the subject of inquiries particular to this case to render him a railroad operations expert—Plaintiff has not met its evidentiary burden.

Based thereon, the court finds that UPRC has met its evidentiary burden to establish that it is entitled to summary adjudication of the negligent training/entrustment as an issue of duty.

“The elements of a cause of action for premises liability are the same as those for negligence.” (Castellon v. U.S. (2013) 220 Cal.App.4th 994, 998.)

UPRC failed to maintain the barrier or fence in the incident site to keep pedestrians from accessing the tracks, walking on or along the tracks, failed to place properly place, maintain or repair signs and/or markings or other devices that would have indicated to pedestrians on how to safely cross the train tracks or access the incident site. It did not provide adequate warning devices, proper markings, lighting, lines-of-sight, signals and/or signs, and did not have adequate track crossing protection.

“As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.) “The presence of railroad tracks is a warning of an open and obvious danger.” (Id.) “‘A railroad track upon which trains are constantly run is itself a warning to any person who has reached years of discretion, and who is possessed of ordinary intelligence, that it is not safe to walk upon it, or near enough to it to be struck by a passing train....’” (Id. quoting Holmes v. South Pac. Coast Ry. Co. (1893) 97 Cal. 161, 167.) However, even if a danger is so obvious that a person could reasonably be expected to see it in as much as the condition itself serves as a warning precluding a landowner’s further duty to remedy or warn of the condition, this is not true in all cases. (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393). “The most important policy consideration in determining whether a duty exists is the foreseeability of the harm.” (Id. at 394.)

Defendant argues that it had no duty to warn because the danger is so obvious, which Plaintiff conceded. (Statement of Undisputed Facts No. 7; see also Evidence, Ex. G [Q: No. And as a pedestrian, are you supposed to be on the tracks at any time? A No . . . Like I know you're not supposed to be there. Like that's why they kick us out because nobody is supposed to live there. Q: Or walk on it? Are you aware of that? A: Yeah. I don't think nobody should be walking on it. Q: So you knew that you shouldn't be walking on the tracks? A: (Witness nods head up and down.) Yes . . . I knew that we couldn't be on the tracks, yes . . . Q: Did you know you shouldn't be on the bridge on the day you were walking on the bridge? A: Yes.”]) (emphasis added).

In Opposition, Plaintiff argues “[i]n this case there is evidence that there is a visible path leading to the location where Rosado entered the train tracks. There is evidence that the path is used by people to enter the train track . . . There is evidence that there have been prior accidents and fatalities in the area.” (Opp. p. 6.) Plaintiff submits her own declaration in support of her position. According to Plaintiff, she “entered the railroad through the Gibson Mariposa Park” and the railroad track is “routinely accessed by people through the hole in the fence at Gibson Mariposa Park. (Rosado Decl., ¶¶3, 7.)

Here, however, Plaintiff’s argument that the others cross the bridge and therefore a duty to warn is created is inaccurate as a matter of law. The case of Carter v. National Railroad Passenger Corporation (N.D. Cal. 2014) 63 F.Supp.3d 1118, 1149 (“Carter”) addresses the very facts. In Carter, a deceased pedestrian's survivors brought action against National Railroad Passenger Corporation (Amtrak) and railroad, asserting wrongful death and survival claims based on negligence and premises liability after pedestrian was struck and killed by a train while walking across tracks toward a nature area. According to the deceased’s wife, she and her husband had gone to this area approximately 300 times wherein they would head south on a trail that began near their regular parking spot, walking for a short distance alongside the track on that trail and then turning right onto a “worn, beaten path” across the railroad tracks. (Id. at 1121.) In fact, the engineer testified that it was not unusual to see people crossing the track. On the day in question, the engineer testified that the track was clear but when as the train passed the crossing, the deceased walked back up on to the tracks and bent over to pick up one of his dogs. (Id.) In addressing one of the defendant’s arguments with respect to the duty to warn—specifically that there was no duty to warn as a matter of law because the danger of being hit by an approaching train is obvious to a person who is walking on or near the tracks—the court agreed. In doing so, the court relied on well-settled principle than an owner or possessor of land owes no duty to warn of obvious dangers on the property. (Id. at 1151.)

Therefore, applying the similar rule wherein any reasonable person would know that crossing the track is dangerous—as Plaintiff herself conceded—the court concludes that UPRC owes no duty to warn Plaintiff of obvious dangers.

With respect to the installation of some fencing or gates, the general rule is that a landowner owes a duty to use reasonable care to protect individuals on the land from dangerous conditions that could reasonably be expected to harm them. (Carter, supra, at p. 1147, relying on Rowland v. Christian (1968) 69 Cal.2d 108.)

a. Foreseeability and Connection Between Plaintiffs' Injury and Union Pacific's Conduct (Rowland Factor No. 1)

The court looks to the existing conditions at the site of the incident to determine whether it was foreseeable that Union Pacific's conduct would lead to the type of injury that occurred in this case. In an objective sense, there is evidence that an accident of this type was likely to occur at the location where it did, substantiated by Plaintiff’s evidence that the railroad track is routinely accessed by people through the hole in the fence at Gibson Mariposa Park because it provides an easy and quick access to the users of the track. As the court in Carter stated:

California common law recognized that such a path is an indication of constant use that gives rise to a duty of due care because it puts the landowner on notice that individuals are crossing the tracks at that location, making the possibility of harm to those individuals foreseeable . . . These paths and trails should have put Union Pacific on notice that individuals were crossing the tracks and walking along the tracks in this area on a regular basis . . . This evidence is sufficient to show that it was objectively foreseeable that individuals who used the nature area and the sports complex on the other side of the tracks would use the worn path crossing the tracks and the paths adjacent to the tracks and that they could be injured by passing trains . . . the category of individuals likely to be injured is simply those who use the trails and well-worn path connecting the sports complex and the nature center. There is nothing unreasonable, as a matter of social policy, about finding that such individuals are owed a duty of care . . . Considering all of the Rowland factors, the Court rejects Defendants' assertion that they are entitled to summary judgment on Plaintiffs' premises liability claim on the ground that there is no duty to fence as a matter of law.

Here, similar to Carter, there is evidence that that the path was crossed regularly as a shortcut and there is a park right next to it where kids play. (See generally Plaintiff’s deposition.)

Therefore, the court finds an existence of a duty to take reasonable measures, which may include installing fencing or gates of some sort, to prevent harm to individuals like Plaintiff who regularly walk along the trails and paths in the area where the incident occurred.

As for the remaining Rowland factors, they were not addressed by Defendant.[8]

Therefore, as Defendant only considered the first Rowland factor, which the court found in favor of Plaintiff, the court rejects Defendant’s assertion that they are entitled to summary judgment on Plaintiffs' premises liability claim on the ground that there is no duty to fence as a matter of law.

“In California, the causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant's breach of duty (his negligent act or omission) was a substantial factor in bringing about the plaintiff's harm and (2) that there is no rule of law relieving the defendant of liability.” (Leslie G. v. Perry & Associates (1996) Cal.App.4th 472, 481.) Though

California courts have not defined “substantial factor,” the California Supreme Court has held that: “To be considered a proximate cause [], the acts of the defendants must have been a ‘substantial factor’ contributing to the result ... ‘[N]o cause will receive judicial recognition if the part it played was so infinitesimal or so theoretical that it cannot properly be regarded as a substantial factor in bringing about the particular result.’” (People v. Caldwell (1984) 36 Cal.3d 210, 220.) Furthermore, according to Restatement (Second) of Torts section 433 subdivision (b), one consideration in determining whether the defendant's acts were a substantial factor is “whether the actor's conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by another force for which the actor is not responsible.”

As Defendant contends, the undisputed evidence establishes that Plaintiff was the substantial factor in her own injury. The train crew sounded their horn warning of their approach. This evidence establishes that Plaintiff should have been able to see and hear the approaching train before she walked onto the tracks.

Therefore, Defendant has met its burden to establish that it entitled to summary judgment on this ground.

In Opposition, Plaintiff avers that she “presented evidence that if she heard the horn in this case, she would not have been on the bridge and been struck by the train. Also, slowing the train would have given her sufficient time to crossover to the other side of the bridge, thereby avoiding the accident. Defendant’s conduct created an opportunity for the defendant to be on the right-of-way where the accident occurred.” (Opp. p. 10.)

Here, however, Plaintiff, even in her own declaration, has not provided evidence of any of that. Ultimately, the court finds that Plaintiff’s action Defendant Union Pacific fail predominantly because of the element of ‘causation,’ which is required for both causes of action. Though generally a question for the trier of fact and though the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact, “it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Id) (italics original). Thus, “if the court determines that all of the evidence presented by the plaintiff, and all of the inferences drawn therefrom, show and imply [the cause of action] only as likely . . . or even less likely, it must then grant the defendants' motion for summary judgment, even apart from any evidence presented by the defendants or any inferences drawn therefrom, because a reasonable trier of fact could not find for the plaintiff.” (Id.) The indisputable fact remains that despite the clear presence of a train adjacent to Plaintiff, she still moved inward on the bridge and into the path of part of the locomotive that extends beyond rails. That Plaintiff argues she would not have crossed the train track had she heard the horns; that she had to cross the tracks out of necessity because she and her friend were trapped;[9] that she would have not been hit had the crews acted with competence; and that she would not have crossed had there been additional fencing are not only all unsupported by evidence, but remain one of pure speculation and conjecture. (See Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035 [“A mere possibility of causation is not enough to support a negligence claim,” notably when the “matter remains one of pure speculation or conjecture.”].)

Therefore, while the court is wholly aware that what is negligence under a particular set of circumstances is a question for the trier of fact, here the court finds that no trier of fact would find for Plaintiff.

Even if Defendant Union Pacific owed Plaintiff a duty to fix the fence leading from the park to the railroad, Plaintiff made a cognizant decision to move inward even in the presence of the train. Thus, it was not Defendant Union that was a substantial factor in bringing about Plaintiff’s injuries, but Plaintiff’s creation of a harmful situation that was the cause to her own injuries.

Based on the foregoing, Defendant Union Pacific Railroad Company’s motion for summary judgment is GRANTED.

A party may join a motion for summary judgment by filing a separate statement that identifies the evidence demonstrating that the joining party is entitled to summary judgment. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 636.) In addition, the party must provide the notice required in CCP section 437c when they file the joinder. (Id., at 636-37.)[10] Furthermore, CCP section 437c, subdivision (a) requires that “[n]otice of the motion [for summary judgment] and support papers shall be served on all other parties to the action at least 28 days before the time appointed for the hearing.”

Here, the City has included a separate statement with its joinder. The proof of service filed on November 12, 2021, which is provides more than 75 days’ notice before the originally appointed hearing date of February 1, 2022.

Therefore, considering that (1) the City's purported joinder papers complied with the statutory requirements for a summary judgment motion and (2) Plaintiff did not object to the joinder by way forfeiting any contention to improper joinder, the City's joinder with Union Pacific’s motion for summary judgment therefore can be considered to be a motion for summary judgment in favor of the City. In effective, the City’s motion is also granted.[11]

[1] Both motions provide the following: “Plaintiff hereby objects to and requests that the court strike [Defendants’] Reply to Plaintiff’s Response to Separate Statement in Support of her Opposition to Defendant’s Motion for Summary Judgment and Evidence Submitted in Support of the Reply on grounds that the Statute does not provide for the Reply. See Nazir v. United Airlines, Inc. (2009) 178 Cal App 4th 243, 252. The evidence presented is not allowed and the defendant has not demonstrated why such evidence should be allowed. See San Diego Watercrafts, Inc. v. Wells Fargo (2002) 102 Cal. App. 4th 308, 312-316. Thus, the plaintiff respectfully requests that the Court strike the Reply and any supporting evidence in support of the reply.” Plaintiff’s request, however, misconstrues the discussion in Nazir. In Nazir, the defendant’s reply “included, and properly, their response to plaintiff's additional disputed facts. Defendants' reply also included, not so properly, a 297–page ‘Reply Separate Statement’ and 153 pages of “Exhibits and Evidence in Support of Defendants' Reply.’ And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff's declaration, many of which objections were frivolous. In all, defendants filed 1150 pages of reply.” (Id. at p. 252.) Accordingly, the court in Nazir did not take issue with the defendant’s filing of a reply to the separate statement wherein the party raised evidentiary objections but it took issue with the inappropriateness of defendants' papers because the separate statement cited immaterial facts, created a misleading picture, and were excessive volume. (Id. at pp. 252-253.) In fact, the court there went as far as to say that “what is before us for de novo review: an order granting summary judgment that purports to sustain without explanation 763 out of 764 objections to evidence, in a record the likes of which we have never seen—not here, not in the combined 11 years of law and motion experience of the members of this panel.” (Id. at 250) (emphasis added). To the contrary, here, the Reply to the separate statement are merely concise and applicable evidentiary objections, which do not cite to new evidence. Therefore, the court will not strike the Replies to Plaintiff’s response to the separate statement.

[2] On this note, a fatal defect to Plaintiff’s opposition to Defendant UPRC’s MSJ is its primary reliance on the City’s separate statement rather than citing to Defendant UPRC’s separate statement. Even if Counsel had signed his declaration, this evidence would have still been inadmissible as hearsay.

[3] That said, the court notes that the City’s motion provides deposition testimony wherein Plaintiff states she does not recall the incident.

[4] The Negligence cause of action shares similar allegations to that of the Premises Liability cause of action. Notably, both are comprised of allegations pertaining Defendant’s alleged failure to warn and failure to erect additional barriers/fencing. For the sake of clarity, the court will address those allegations in the section B infra on premises liability.

[5] Scooter is a qualified expert for the following reasons: Scooter has Bachelor of Science in Civil Engineering from the University of Alaska Anchorage and a Masters of Science in Civil Engineering from the University of Illinois Urbana Champaign. Additionally, Scooter holds a Fundamentals of Engineering (EIT) Certificate and previously held a 40 C.F.R. Part 240 certified passenger and freight Locomotive Engineer certificate. Furthermore, Scooter has worked multiple positions at the Alaska Railroad including Train Dispatcher, Locomotive Engineer, Conductor/Hostler, and Brakeman where he also mentored new conductors, locomotive engineers, and train dispatchers, as well as gave presentations on rules and regulation.

[6] In opposition, Plaintiff avers that she is not disputing that the train was not going within the speed limit.

[7] Thus, the negligence cause of action is more so based upon Defendant’s purported duty to warn and failure to provide additional fencing or safety measures.

[8] The remaining factors are: the degree of certainty that the plaintiff suffered injury; the closeness of the connection between the defendant’s conduct and the injury suffered; the moral blame attached to the defendant’s conduct; the policy of preventing future harm; the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and (7) the availability, cost, and prevalence of insurance for the risk involved. Briefly, however, the court will comment on a few factors. As to whether the conduct was morally blameworthy, there is evidence as found in Plaintiff’s deposition testimony that police have previously removed her from the tracks before; thus, this factor does not “tip the balance” in favor of finding a duty under Rowland. As for the burden on Union Pacific, the court finds the burden minimal as Plaintiff does do not assert that Defendant has a duty to fence the entire right-of-way; rather, the hole in the fence from the park to the railroad.

[9] Even as to this point, while Plaintiff does not provide evidence, it appears to be contradicted by the City’s deposition testimony wherein she was on the track to get money owed from her friend “Pancho” and then bent over to get her sweater. This does not amount to necessity.

[10] Though Frazee remains good law, the court notes that since the publication of Frazee, the statute has been amended wherein 28 days’ notice is not required but 75 days’ notice.

[11] Even if the court found Defendant UPRC had a duty to provide fix the fencing, Plaintiff’s action still fails for causation as to both Defendants.