     Case: 11-30200     Document: 00511619976         Page: 1     Date Filed: 10/03/2011




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

                                                                            FILED
                                                                          October 3, 2011

                                     No. 11-30200                          Lyle W. Cayce
                                   Summary Calendar                             Clerk


STEVE DOYLE, III,

                                                  Plaintiff - Appellant
v.

UNION PACIFIC RAILROAD COMPANY,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 6:10-cv-470


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*
        Steven Doyle appeals the district court’s grant of summary judgment in
favor of Union Pacific Railroad Company (“Union Pacific”) on his claims for
damages resulting from injuries sustained in an automobile-train accident,
which occurred on March 5, 2009. We AFFIRM.



        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                        FACTS AND PROCEEDINGS
      Many of the material facts are not in dispute. On the evening of March 5,
2009, after playing cards and consuming a half pint of whiskey, Doyle attempted
to drive across a set of railroad tracks near his house in Eunice, Louisiana
around 5:30 p.m. While crossing those tracks, a train operated by Union Pacific
collided with his car. The railroad crossing was marked with lights and a
crossbuck signal. Doyle admitted to not looking in either direction before
crossing the tracks. A toxicology report, taken roughly an hour after the
accident, showed Doyle’s blood-alcohol concentration (“BAC”) was .108%, which
is in excess of Louisiana’s legal driving limit of .08%. LA. REV. STAT. § 14:98.
      The only factual issues in dispute are whether the crossing signals were
working at the time of the accident and whether the train sounded its horn prior
to approaching the crossing. Doyle claims that the signals were not working and
the conductor did not sound the horn prior to the accident. In support of his
claim, Doyle submitted the testimony of his sister, Felicia Allen, who stated that
she did not hear the train’s whistle prior to the accident and that she did not see
the crossing lights working when she arrived at the scene forty minutes later.
Allen, who lives four blocks away from the crossing and was in her home at the
time of the accident, testified that she was not actively listening for the whistle
prior to the accident and did not witness the accident. Furthermore, she could
not testify as to whether the crossing lights were working at the time of the
accident.
      The defendant presented the affidavits of Captain Thibodeaux and Mark
Pollan and the testimony of Dr. Susan Shelnutt. Thibodeaux, the first police
officer who responded to the scene of the accident, stated that the railroad
crossing signals were operational and were functioning during his on-scene
investigation. Pollan, the Manager of the Event Recorder Center for Union

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Pacific, reviews and analyzes the information downloaded from trains’ data
event recorders and summarizes the findings. After reviewing and analyzing the
data from the event recorder of the locomotive involved in the accident, Pollan
stated that the data showed the engineer began sounding the train’s horn 2,306
feet prior to the stop of the train for a total of 25 seconds. Lastly, Shelnutt, a
toxicologist, testified that Doyle’s BAC at the time of the accident was most
likely .112%, with a possible range of 0.103% to 0.127%. She testified that
Doyle’s calculated BAC at the time of the accident was well above levels
associated with impairment and that he would have had a significantly
increased risk of being involved in a vehicular accident.
                           STANDARD OF REVIEW
      A district court’s grant of summary judgment is reviewed de novo. Cates
v. Dillard Dep’t Stores, Inc., 624 F.3d 695, 696 (5th Cir. 2010). 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).
                                      ANALYSIS
      Doyle’s claim is barred by statute. Louisiana Revised Statute § 9:2798.4
provides that no person “shall be liable for damages . . . for injury or loss of the
operator of a motor vehicle” when (1) the operator is legally intoxicated, (2) the
operator is more than twenty-five percent negligent, and (3) his negligence is a
contributing factor in the accident. See Lyncker v. Design Eng’g, Inc., 51 So. 3d
137, 142 (La. Ct. App. 2010) (concluding that “any reasonable fact finder would
be compelled to find Plaintiff in excess of twenty-five percent negligent” where
plaintiff’s BAC was significantly over the legal limit). The evidence conclusively
establishes that Doyle was intoxicated and failed to look both ways before
crossing the tracks, in violation of Louisiana Revised Statute § 32:175.

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      Moreover, Doyle provided no factual support for his claims that the
crossing lights were not working and that the train’s engineer did not sound the
horn prior to the accident. Allen’s testimony provides insufficient evidence
because she was not present during the accident and could not testify as to what
specifically took place. The defendant provided affidavits from two individuals,
Thibodeaux and Pollan, who stated that the lights were properly working and
that the engineer sounded the horn prior to the accident, respectively. There is
no genuine issue of material fact. Summary judgment is appropriate because no
reasonable juror could find either that Union Pacific was negligent or that Doyle
was less than 25% contributorily negligent due to his intoxication and failure to
look for oncoming trains.
                                   CONCLUSION

      For the reasons stated above, we affirm the district court’s grant of
summary judgment.




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