   Case: 18-30824    Document: 00515237878    Page: 1   Date Filed: 12/16/2019




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                    Fifth Circuit

                                                                   FILED
                               No. 18-30824                    December 16, 2019
                                                                 Lyle W. Cayce
                                                                      Clerk

MICHAEL TODD RYDER, both individually and as natural Father
on behalf of MICHAEL TODD RYDER, II;
LORI POWELL, both individually and as natural Mother
on behalf of MICHAEL TODD RYDER, II;
NELL THERESA RYDER, both individually and as natural Mother
on behalf of JOHN CAMERON WATSON;
HERBERT PAUL BARRAS, JR., both individually and as natural Father
on behalf of HERBERT PAUL BARRAS, III;
LISA BARRAS, both individually and as natural Mother
on behalf of HERBERT PAUL BARRAS, III,

                                        Plaintiffs–Appellants,

PIPELINE CONSTRUCTION & MAINTENANCE, INCORPORATED;
ZURICH AMERICAN INSURANCE COMPANY,

                                        Intervenors–Appellants.

versus

UNION PACIFIC RAILROAD COMPANY;
UNION PACIFIC RAILROAD CORPORATION;
KINDER MORGAN G.P., INCORPORATED;
KINDER MORGAN ENERGY PARTNERS, L.P.,

                                        Defendants–Appellees.



                Appeal from the United States District Court
                    for the Middle District of Louisiana
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                                      No. 18-30824
Before OWEN, Chief Judge, JONES and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      It is alleged that Union Pacific Railroad Company and Union Pacific
Corporation (“Union Pacific”) negligently contributed to a fatal railroad colli-
sion. The plaintiffs and intervenors (“plaintiffs”) appeal a summary judgment
for Union Pacific. We affirm.

                                             I.
      On a dreary winter’s afternoon in rural Louisiana, three coworkers drove
through rain and fog as the last in a caravan of four commercial trucks that
approached their job site, a local oil and gas pipeline facility, via a private
gravel road. Just before reaching a cattleguard gate, the caravan had to cross
railroad tracks. One-by-one, each of the first three trucks paused at the stop
sign for the railroad crossing, slowly crossed the tracks, then stopped at the
gate to wait for someone from the lead truck to unlock it. The last truck fol-
lowed suit, but, as the first three parked trucks had left insufficient room for
the last truck to clear the crossing, the driver stopped his truck on the tracks.
Seconds later, a southbound Union Pacific train approached at a speed of fifty-
one miles per hour. Hearing the train’s horn too late, if at all, the three occu-
pants were killed in the subsequent collision.

      The relevant railroad crossing 1 (“the Oil & Gas Crossing” or “the Cross-
ing”) provides the sole route for vehicles to access a local pipeline and wells,
which are operated by three different businesses. 2 After exiting Louisiana
Highway 5, motorists drive seventy feet east to the Oil & Gas Crossing, whence



      1   Officially, United States DOT Grade Crossing No. 755983T.
      2 The three deceased were contractors employed by Pipeline Maintenance & Construc-
tion, which is an intervening plaintiff.
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                                       No. 18-30824
it is a further eighty-five feet to the gate. The private drive intersects with the
railroad tracks at close to a right angle, but a gentle curve and elevation
change, coupled with trees and vegetation, slightly obscures an oncoming
southbound train from motorists’ view until it should come within 350 feet of
the Crossing. Trains regularly traverse the Crossing at speeds approaching
sixty miles per hour.

       Union Pacific owns the Oil & Gas Crossing. Sometime after another
truck collision in 2008 (and a near-miss in 2009), Union Pacific management
inspected the Crossing and deemed it to be “private [ ] with public character-
istics.” The railroad then installed a stop sign and crossbuck 3 at the Crossing,
though it stopped short of taking further precautionary measures—such as
lights, gates, or contract flaggers—that it employed for other crossings in the
immediate area.

       The bereaved families initiated this federal diversity action against
Union Pacific, 4 alleging that the railroad had negligently contributed to the
collision. Decedents’ employer and insurance company intervened as plaintiffs
to recover disbursed benefits. Union Pacific filed two motions for summary
judgment that, together, covered all claims against it.                 The district court
granted both, and the plaintiffs appeal.




       3    A “crossbuck” is an X-shaped sign indicating a rail crossing. The plaintiffs claim
that the sign that Union Pacific installed at the Oil & Gas Crossing was not technically a
crossbuck, and Union Pacific’s motion for summary judgment indeed referred to the sign not
as a crossbuck but as a “crossing placard.” The court thus may have been inaccurate in stat-
ing that it was “undisputed that [the Oil & Gas Crossing] was marked with a railroad cross
buck . . . .” Ryder v. Union Pac. R.R. Co., 2017 WL 4364412, at *3 (M.D. La. 2017). Regard-
less, any distinction between a crossbuck and a crossing placard is immaterial to our analysis,
so we follow the district court in referring to the sign as a “crossbuck.”
       4They also sued the companies alleged to control the gate to the pipeline facility. The
appeal before us, however, concerns only Union Pacific.
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                                    No. 18-30824
                                         II.
         This court “review[s] summary judgment de novo, applying the same
legal standards as the district court.” Prospect Capital Corp. v. Mut. of Omaha
Bank, 819 F.3d 754, 756–57 (5th Cir. 2016). Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a).

         In reviewing whether there be a genuine dispute of material fact, the
court is to “consider all of the evidence in the record but refrain from making
credibility determinations or weighing the evidence.” Delta & Pine Land Co.
v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
Instead, we must read all evidence in the light most favorable to the nonmoving
party and likewise draw all reasonable inferences in that party’s favor. Ander-
son v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If there be any genuine
dispute of material fact that a trier of fact may reasonably resolve in favor of
either party, then summary judgment must be denied. Id. At the same time,
“[s]ummary judgment may not be thwarted by conclusional allegations, unsup-
ported assertions, or presentation of only a scintilla of evidence.” Hemphill v.
State Farm Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015).

         “When, as in this case, subject matter jurisdiction is based on diversity,
federal courts apply the substantive law of the forum state . . . .” Id. For
guidance, we turn first to Louisiana’s highest court and otherwise look to its
intermediate courts to determine how the highest court should likely rule.
Meador v. Apple, Inc., 911 F.3d 260, 264 (5th Cir. 2018). If guidance be lacking
still, this court is not to innovate new “theories of recovery.” Id. The plaintiffs’
allegations against Union Pacific broadly encompass (1) breach of a duty to
install sufficient visual warning devices at the Crossing and (2) negligent

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                                      No. 18-30824
operation of the locomotive horn. We consider each in turn.

                                            III.
       “In order to determine whether liability exists under the facts of a partic-
ular case, [the Louisiana Supreme] Court has adopted a duty-risk analysis.”
Duncan v. Kansas City S. Ry. Co., 773 So. 2d 670, 675 (La. 2000). To recover,
a “plaintiff must prove that the conduct in question was a cause-in-fact of the
resulting harm, the defendant owed a duty of care to the plaintiff, the requisite
duty was breached by the defendant and the risk of harm was within the scope
of protection afforded by the duty breached.” Id.

       The plaintiffs claim that Union Pacific breached a duty to provide ade-
quate visual warning devices at the Oil & Gas Crossing. “[W]e begin our [ ]
analysis by examining the duty owed,” if any, “by [Union Pacific] to the plain-
tiffs.” Id. at 676.

                                            A.
       Although Louisiana statutory law requires owners of public rail cross-
ings to install various visual safety devices, see, e.g., LA. REV. STAT. ANN.
§ 32:169, it is less clear what duties apply to owners of private crossings. Cer-
tain language suggests that—with narrow exception—all duties of rail crossing
owners arise by statute, which would leave owners of private crossings gener-
ally free from any duty. 5 But other language suggests that the Louisiana Civil
Code “place[s] duties upon” the owner of a rail crossing—private or public—to
“maintain[] the safety of the intersection” with reasonable care, the breach of




       5 See Davis v. Canadian Nat’l Ry., 137 So. 3d 11, 13 (La. 2014) (per curiam) (stating
that, beyond statutory duties, “any further duty to warn” would apply only if the crossing
were a “dangerous trap”); see also Rivere v. Union Pac. R.R. Co., 647 So. 2d 1140, 1145 (La.
App. 1st Cir. 1994), writ denied, 651 So. 2d 295 (La. 1995).
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                                       No. 18-30824
which “may serve as the basis for a tort claim[.]” 6

       Such passages might be reconciled by holding that the Louisiana Civil
Code attaches a general duty for owners and operators to maintain safety at
crossings, which, for public crossings, is presumptively satisfied by statutory
compliance. At public crossings, there must be a crossbuck installed, and the
Louisiana Department of Transportation and Development may order the
installation of additional warning devices “[w]henever [it] determines that a
particular traffic control device needs to be installed[.]”                 LA. STAT. ANN.
§ 32:169(A), (E)(1). A railroad’s reliance on and deference to the Agency’s regu-
latory mandate would be reasonable, and any extra warning device would be
an “unusual precaution[]” required only in exceptional circumstances. Rivere,
647 So. 2d at 1145.

       Were the Oil & Gas Crossing a public crossing, Louisiana’s regulatory
authorities might or might not have required Union Pacific to install warning
devices beyond the crossbuck, such as lights or gates. See LA. STAT. ANN.
§ 32:169(E)(1).     Instead, it fell solely on Union Pacific to determine what
devices, if any, were reasonably required to “maintain[] the safety of the inter-
section.” Holloway, 988 So. 2d at 858. And Union Pacific acted accordingly—
it was its agents, not Louisiana’s, who inspected the Crossing and made recom-
mendations to install various signs in the wake of the 2008 truck collision and
the 2009 near-miss. Perhaps those signs satisfied Union Pacific’s possible duty
under Article 2317.1 of the Louisiana Civil Code, but the existence of such a
duty is a different question altogether.

       Nevertheless, “it is not for us to adopt innovative theories of recovery




       6 Holloway v. Kansas City S. Ry. Co., 988 So. 2d 854, 858 (La. App. 2d Cir. 2008) (citing
LA. CIV. CODE ANN. Art. 2317.1)).
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                                 No. 18-30824
under state law,” “[e]ven in the rare case where a course of [Louisiana] deci-
sions permits us to extrapolate or predict with assurance where that law would
be had it been declared[.]” Meador, 911 F.3d at 264. The only Louisiana case
to speak directly to the respective duties surrounding private versus public rail
crossings is approaching its centennial. See Townsend v. Mo. Pac. R.R. Co.,
3 La. App. 598, 603–04 (1925). Being a federal court, “out of the mainstream
of [Louisiana] jurisprudential development,” we decline to issue a holding so
broad as to affect tort duties relating to all private rail crossings. Meador,
911 F.3d at 264.

                                     B.
      It is not a novel supposition, however, that Louisiana law imposes on
owners and operators an extra-statutory duty to maintain safety at some rail
crossings. Most settled is the “dangerous trap” doctrine, which applies to cross-
ings where “the view of the roadway is so obstructed as to require the user to
place himself in a position of peril dangerously near the tracks to have a view
of any oncoming traffic.” Davis, 137 So. 3d at 13. “When a dangerous trap
exists, the railroad company will be held liable” even if it met its statutory
obligations, “unless it can show that it took unusual precautions, such as reduc-
ing the speed of the train, or increasing its warning or providing signaling
devices, etc.” Rivere, 647 So. 2d at 1145.

      Although the plaintiffs cite a variety of “dangerous conditions” at the Oil
& Gas Crossing, they do not contend that motorists must venture dangerously
close to the tracks to obtain a line-of-sight with an oncoming train. Therefore,
as a matter of Louisiana law, the Crossing is not a “dangerous trap.” See Davis,
137 So. 3d at 13.

      Even so, Union Pacific might be held liable should the Oil & Gas
Crossing constitute a “unique hazard.” Beyond the “dangerous trap” doctrine,
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                                     No. 18-30824
a railroad may be found liable—notwithstanding “compliance with statutory
provisions”—for providing inadequate safety devices at distinctly dangerous
crossings. Duncan, 773 So. 2d at 676; but cf. Davis, 137 So. 3d at 13. In Dun-
can, 773 So. 2d at 677, the Louisiana Supreme Court held that a high-volume,
high-speed intersection created “visual clutter” amounting to a “unique haz-
ard,” against which “the jury could have reasonably concluded that [the rail-
road] had a duty to plaintiffs to protect[.]” The plaintiffs do not allege that the
Oil & Gas Crossing is beset by such visual clutter, but we must consider
whether other “unique” conditions might qualify it as critically hazardous.
See id.

      The aforementioned “dangerous conditions” of the Oil & Gas Crossing,
though not relevant to the “dangerous trap” doctrine, would inform our “unique
hazard” inquiry. The plaintiffs claim that an elevation change and curve in
the track, combined with surrounding vegetation, reduces the distance at
which motorists can view oncoming southbound trains. They further contend
that noise from oil field equipment and vehicles impedes motorists’ ability to
hear a train horn. Under such conditions, the plaintiffs estimate that “a motor-
ist would have less than four seconds to see and hear [a southbound] train”
traveling at the sixty-mile-per-hour limit. Further, the proximity of the Cross-
ing between the public highway and the locked gate leaves limited space for
large commercial vehicles. 7 Union Pacific knew that such vehicles regularly
traversed the Crossing and that one of them had already collided with a train.
Under the totality of the circumstances, we believe a “jury could [ ] reasonably
conclude[] that [Union Pacific] had a duty to plaintiffs to protect against the
unique hazard presented by the [Oil & Gas] crossing.” Id.



      7  The Oil & Gas Crossing is seventy feet east of Louisiana Highway 5 and eight-five
feet west of the access gate to the oil facility.
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                                       No. 18-30824
       The mere existence of a duty would not be enough to establish liability;
the plaintiffs must also prove, among other things, that Union Pacific breached
that duty. See id. at 675–76. Plaintiffs assert that if Union Pacific had pro-
vided “active warnings”—such as lights, gates, or flaggers—the accident “likely
would not have occurred.” But the railroad would be required to take all pos-
sible precautions to prevent any collision. 8 We would not need to inquire
whether Union Pacific’s signage were sufficient to prevent the collision;
obviously, and tragically, it was not. 9 Instead, we would ask whether such
signage were “sufficient warning . . . commensurate with the danger of the
crossing.” Id. at 676.

       The plaintiffs have not presented evidence indicating otherwise. Al-
though not necessarily required to do so, Union Pacific cleared surrounding
vegetation in compliance with Louisiana statutory law for public crossings.
See LA. STAT. ANN. § 48:386.1(A), (C). The private gravel road leading to the
Crossing was not subject to high-speed or confusing traffic of a kind that might
cause drivers to miss the sign. Cf. Duncan, 773 So. 2d at 677. The railroad
installed a crossbuck and stop sign. The plaintiffs do not claim that, having
paused at the stop sign (as the decedents did), a driver could not determine
whether the vehicle ahead of him left enough space to clear the tracks. Neither
do plaintiffs claim that said driver could not perceive an oncoming train in time
either to refrain from crossing or, given a clear roadway ahead, move forward
to safety.

       Neither have the plaintiffs presented facts suggesting that Union Pacific


       8 See Rivere, 647 So. 2d at 1145 (“[D]uties of the railroad with regard to further safety
devices rise[] in proportion to the increasing dangerousness of the crossing[.]”).
       9 See Kendrick v. Louisiana & Nw. R.R. Co., 766 So. 2d 705, 714 (La. App. 2d Cir.
2000) (“[T]he mere happening of an accident does not engender a presumption that defects
are present.”).
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                                    No. 18-30824
violated a voluntarily assumed duty. “Unique hazard” doctrine notwithstand-
ing, once Union Pacific had “voluntarily assumed” a duty to warn motorists,
Louisiana law requires it perform that duty “with due care.” Saldana v. Larue
Trucking, LLC, 268 So. 3d 430, 437 (La. App. 2d Cir. 2019), writ denied, 2019
La. LEXIS 2389 (La. Oct. 1, 2019). Plaintiffs do not dispute that Union Pacific
installed warning signs or even that the decedents saw those signs. 10 Instead,
they assert that Union Pacific’s signage was in fact counterproductive, as “most
[recent] incidents at private crossings occur at crossings with stop signs.” But
correlation does not imply causation—stop signs are the most common passive
warning device. 11 Neither are we convinced by the plaintiffs’ proffered studies
questioning the general efficacy of stop signs based on poor compliance rates
or deleterious traffic effects: The decedents did stop at the sign, and the traffic
buildup on the other side of the Crossing resulted from the gate, not the sign.

       “A motorist negotiating a railroad crossing is burdened with the respon-
sibility of seeing and hearing that which he could have seen and heard, and he
is presumed in law to have seen and heard what he could have seen and heard.”
Glisson v. Mo. Pac. R.R. Co., 165 So. 2d 289, 291 (La. 1964). Although the
plaintiffs cite dangerous conditions to support application of a potential duty
to warn motorists approaching the Oil & Gas Crossing, they have not shown
why the signs Union Pacific installed were insufficient to fulfill any such
duty. 12




       10Cf. Saldana, 268 So. 3d at 438–39 (outlining factual dispute of whether warning
signs were in place on the day of the accident).
       11See U.S. Dep’t of Transp., Fed. Railroad Admin., Private Highway-Rail Grade
Crossing Safety Research and Inquiry 20–21 (2010).
       12The same reasoning would apply even if, as the plaintiffs contend, Union Pacific
voluntarily assumed a duty to warn motorists.
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                                  No. 18-30824
                                        IV.
      The plaintiffs also claim that Union Pacific was negligent in operating
the locomotive horn. Specifically, they claim that Union Pacific equipped its
train with an inadequately loud horn; that the engineer sounded a horn pat-
tern in violation of Union Pacific’s internal procedures; and that Union Pacific
failed to train its employees to operate the horn adequately in emergencies. In
response, Union Pacific contends that each claim is either preempted by fed-
eral law or otherwise unsupported by evidence sufficient to survive summary
judgment. We agree with Union Pacific.

                                        A.
      The Federal Railroad Safety Act (“FRSA”), 49 U.S.C. §§ 20101 et seq.,
preempts certain state tort claims alleging negligence in railroad operation.
See Hesling v. CSX Transp., Inc., 396 F.3d 632, 640 (5th Cir. 2005). Should a
provision of the FRSA “substantially subsume the subject matter” of a claim,
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993), the claim would be
colorable only to the extent it alleges either a “fail[ure] to comply with the Fed-
eral standard of care established by a regulation or order issued by the Secre-
tary of Transportation . . . covering the subject matter,” or a “fail[ure] to comply
with [the railroad’s] own plan, rule, or standard that it created pursuant to a
regulation or order,” 49 U.S.C. § 20106(b)(1)(A), (B).

      Federal law “substantially subsumes” the subject of train-horn operation
in emergencies. The relevant regulation states that “a locomotive engineer
may sound the locomotive horn to provide a warning to animals, vehicle opera-
tors, pedestrians, trespassers or crews on other trains in an emergency situ-
ation if, in the locomotive engineer’s sole judgment, such action is appropriate
in order to prevent imminent injury, death, or property damage.” 49 C.F.R.
§ 222.23(a)(1). The plaintiffs assert that, given that Union Pacific issued its

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                                        No. 18-30824
horn-sequence procedure “pursuant to a regulation or order,” the claim that
the railroad negligently violated its own rule is not preempted. 13 We disagree.

       First, the plaintiffs suggest that Union Pacific’s internal horn-sequence
rules 14 were created per 49 C.F.R. § 217.7–11, which mandates that a railroad
instruct its employees on its own internal operating procedures and file a copy
of those procedures with the Federal Railroad Administration. But according
to that logic, all internal practices would be made “pursuant to a regulation”
and thereby create a source of tort liability. Although the administrative agen-
cies could theoretically issue such a rule, we presume that they, no less than
Congress, do not “hide elephants in mouseholes.” Whitman v. Am. Trucking
Ass’ns, Inc., 531 U.S. 457, 468 (2001). Instead of interpreting Section 217 to
“alter the fundamental details of [the] regulatory scheme,” id., we read it as
fulfilling its narrow, stated purpose: to inform the agencies of “the condition of
operating rules and practices with respect to trains[.]” 49 C.F.R. § 217.1.

       Nor do we accept the plaintiffs’ assertion that Union Pacific issued its
internal policy on horn patterns “pursuant to” Section 222.23. Although that
regulation subsumes the subject matter of horn blasting in emergency situ-
ations, it does not impose a duty or even suggest that a railroad instruct its
engineer on a precise horn sequence. Its plain language in fact suggests the



       13 Alternatively, the plaintiffs imply that a preemption analysis is unnecessary. For
that proposition, they rely on a case in which, before finding that a similar “horn claim fail[ed]
for lack of causation,” the district court briefly stated that a state-law claim alleging a rail-
road’s failure “to comply with its own plan, rule, or standard that it created is not preempted.”
Holstine v. Nat’l R.R. Passenger Corp., 2015 WL 3766804 at *9 n.4 (S.D. Miss. June 16, 2015)
(quotation marks omitted). But that court does not appear to have considered the rest of the
statutory clause, which specifically contemplates a “plan, rule, or standard that [the railroad]
created pursuant to a regulation or order issued by either of the Secretaries[.]” 49 U.S.C.
§ 20106(b)(1)(B) (emphasis added).
        Union Pacific has adopted the General Code of Operating Rules (G.C.O.R.), within
       14

which Rule 5.8.2 discusses applicable horn-blast sequences.
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opposite: Engineers should maintain “sole” discretion in use of the horn. That
such horn use might take the form of a particular sequence is immaterial. 15

       The plaintiffs cite Carter v. National R.R. Passenger Corp., 63 F. Supp.
3d 1118 (N.D. Cal. 2014), to suggest that their claims are not preempted. That
case, however, involved a public crossing subject to Section 222.21. See Carter,
63 F. Supp. 3d at 1157. Having discussed at length the distinction between
private and public crossings in the realm of visual safety devices and Louisiana
law, we are hardly willing to abandon the distinction when reading federal
regulation. And even then, Union Pacific’s internal rule could not have been
made “pursuant to” Section 222.21, because that section prescribes a horn se-
quence different from that described in Union Pacific’s rule. 16 Because the
plaintiffs have failed to identify an applicable regulation or order under which
Union Pacific issued its internal rule regarding horn sequences, their “claim is
preempted by federal law.” Hesling, 396 F.3d at 638.

       Similarly preempted is the plaintiffs’ claim that Union Pacific violated a
duty to train its employees on the limitations and effectiveness of locomotive
horns in emergency situations. The plaintiffs style their claim as alleging that
Union Pacific failed to apprise its employees of its own rules, and it is correct
that Section 217.11 requires a railroad to instruct its employees as to the com-
pany’s internal operating rules. But the plaintiffs fail to cite an applicable




       15Cf. Baker v. BNSF Ry. Co., 2010 WL 4063203 at *8 (N.D. Tex. Oct. 13, 2010) (noting
that federal speed regulations imply that engineers “maintain a safe course and remain alert
and attentive”).
       16 Title 49 C.F.R. § 222.21(a) provides that, as a general matter, engineers are to sound
“two long blasts, one short blast and one long blast” when approaching a public crossing. The
plaintiffs claim that Union Pacific violated its internal rule, G.C.O.R. 5.8.2, by not blasting a
series of “short successive sounds.”
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                                       No. 18-30824
internal rule. 17 It thus appears that the true issue they raise is that an engin-
eer’s training does not require that he be informed of horn effectiveness—a
claim that is preempted by federal regulation. 18

                                              B.
       As to horn volume, it is undisputed that 49 C.F.R. § 229.129(a) creates a
federal standard of care by setting “a minimum sound level of 96 dB(A) . . . at
100 feet forward of the locomotive in its direction of travel.” The plaintiffs are
not preempted from claiming that Union Pacific failed to comply with that
standard of care.       See 49 U.S.C. § 20106(b)(1)(A).             We therefore consider
whether they have presented a genuine dispute as to any material fact pre-
cluding summary judgment for Union Pacific on that claim.

       In support of their claim that the locomotive horn was insufficiently loud,
the plaintiffs provide two forms of evidence. First, they assert that witnesses
to the collision either did not hear the horn or heard it only briefly. Second,
they attack the validity of Union Pacific’s horn tests showing adherence to
federal audibility standards by noting that the railroad did not record back-
ground noise during those tests.

       Testimony from aural witnesses may create a genuine dispute of mate-
rial fact as to the loudness of the horn. In one case, witnesses used a ten-point
numeric scale to testify that the train horns sounded louder during actual oper-
ation than during the horn tests. Rushing v. Kansas City S. Ry. Co., 185 F.3d



       17 The plaintiffs contend that G.C.O.R. 1.1’s admonition for employees to “take the
safe course,” “be careful to prevent injuring themselves or others,” and “be alert and attentive
when performing their duties and plan their work to avoid injury” requires they be trained
on highly specific horn safety studies. Under such a reading, the railroad would be obligated
to instruct its employees on almost every possible factor for any given situation.
        See generally 49 C.F.R. §§ 240 et seq. (“Qualification and Certification of Locomotive
       18

Engineers”).
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496, 513 (5th Cir. 1999), superseded by statute on other grounds, as noted in
Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002). Those witnesses
also heard the horns on many occasions, including during both testing and
normal operation, rather than just one time. Id. at 512–14. Such testimony,
notwithstanding the railroad’s testing documentation, was enough to preclude
summary judgment. Id. at 513–15.

       The testimonial evidence in this case, however, is not. Unlike in Rush-
ing, the plaintiffs’ witnesses did not hear the horn during both testing and reg-
ular operation, and their statements speak not to the loudness of the horn but
of its timing and presence—that is, when they heard the horn, if at all. 19 And
plaintiffs have provided no evidence comparing what their witnesses heard (or
did not hear) with what they would have heard had the horn met federal
audibility standards.

       In the absence of evidence suggesting the horn failed to meet federal
audibility standards, it is not enough for the plaintiffs to call into question the
validity of Union Pacific’s tests. “[T]here must be evidence on which the jury
could reasonably find for the plaintiff.”            Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252(1986). If we accept that the horn tests were worthless for
failing to record background noise levels, the plaintiffs would only have
negated evidence demonstrating the horn’s compliance with federal standards;
they would not have presented evidence suggesting non-compliance. Even pre-
sented in a light most favorable to the plaintiffs, the evidence would provide a




       19 The plaintiffs do not claim that the horn either did not sound or sounded too late;
instead, they posit that it sounded too quietly. Statements that the horn sounded only
moments before the collision, or that it did not sound at all, are largely irrelevant to such a
claim. Cf. Rasmusen v. White, 970 F. Supp. 2d 807, 827 (N.D. Ill. 2013) (“[T]here is a genuine
dispute as to whether the train horn was sounded, or sounded at the appropriate statutory
interval[.]”).
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   Case: 18-30824    Document: 00515237878     Page: 16   Date Filed: 12/16/2019



                                No. 18-30824
factfinder with no basis for deciding that the horn did not meet federal audi-
bility standards.

      “While this matter involved a tragic accident, based on the evidence pre-
sented, we find there existed no genuine [dispute] of material fact that if
proven at the trial would or could, under [Louisiana’s] duty-risk analysis,
demonstrate [Union Pacific’s] liability for the fatal accident.”         Davis,
137 So. 3d at 13. The summary judgment is AFFIRMED.




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