MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                          FILED
Memorandum Decision shall not be regarded as                         Jun 16 2017, 5:38 am
precedent or cited before any court except for the
                                                                          CLERK
purpose of establishing the defense of res judicata,                  Indiana Supreme Court
                                                                         Court of Appeals
collateral estoppel, or the law of the case.                               and Tax Court




ATTORNEYS FOR APPELLANTS                                  ATTORNEYS FOR APPELLEES
Robert D. Brown                                           Michael E. Tolbert
Sarah M. Cafiero                                          Tolbert & Tolbert, LLC
Kenneth J. Allen Law Group, LLC                           Gary, Indiana
Valparaiso, Indiana
Attorneys for Crystal Williams and                        David M. Alt
Stephan Williams                                          Katherine L. Hartley
                                                          BatesCarey LLP
William A. Walker                                         Chicago, Illinois
The Walker Law Group
Gary, Indiana
Attorney for Lorenzo Washington



                                             IN THE
     COURT OF APPEALS OF INDIANA

Crystal Williams, Stephan                                 June 16, 2017
Williams, and Lorenzo                                     Court of Appeals Case No.
Washington,                                               45A04-1612-CT-2819
                                                          Appeal from the Lake County
Appellants,
                                                          Circuit Court.
                                                          The Honorable Thomas W. Webber,
        v.                                                Sr., Judge Pro Tempore.
                                                          Cause No. 45C01-1308-CT-124
Chicago South Shore & South
Bend Railroad, Jonathan
Manigold, and William
Cummings,
Appellees.




Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017          Page 1 of 10
      Friedlander, Senior Judge

[1]   Crystal Williams, Stephan Williams, and Lorenzo Washington appeal the trial

      court’s grant of summary judgment to Chicago South Shore & South Bend

      Railroad (“CSS”) and CSS’s employees, Jonathan Manigold and William

      Cummings. We reverse and remand.


[2]   On December 24, 2011, at around 9:54 p.m., seventeen-year-old Crystal

      Williams was walking home in Gary, Indiana. She was accompanied by her

      boyfriend, Lorenzo Washington, and Washington’s friend, who is identified in

      the record by his first name, Joseph. Crystal was in a hurry because her father,

      Stephan Williams, had set a curfew of 9:00 p.m., and she was late.


[3]   The three had to cross a set of railroad tracks to reach Crystal and Stephan’s

      home. The tracks were owned by the Northern Indiana Commuter

      Transportation District (NICTD), and CSS had “trackage rights” to operate
                                                                        1
      trains on that line. Appellants’ App. Vol II, p. 7. At the location in question,

      the tracks ran parallel to U.S. Highway 20 at street level. Crystal lived close to

      the tracks and had frequently crossed them in the past, both on foot and in

      vehicles, at designated crossings. She and her father Stephan had seen trains

      stopped in that area, sometimes for hours, blocking the nearby street crossings.




      1
        Crystal, Stephan, and Washington incorrectly alleged in their civil complaints that CSS owned the railroad
      tracks, but NICTD’s ownership of the tracks was revealed during discovery.

      Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017            Page 2 of 10
      In their experience, the stopped trains sounded their whistles before moving

      again.


[4]   Stephan once saw a person climb through a stopped train in that area. Several

      other residents of the area had seen trains stopped there, and they also saw

      people climb through the stopped trains. This practice had been going on for

      decades.


[5]   As Crystal and her companions approached the train tracks, their path was

      blocked by a stopped train. The train consisted of three locomotive engines and

      125 empty coal hauling cars, and it was more than a mile long. CSS operated

      the train, Manigold was the conductor, and Cummings was the engineer. The

      train had stopped so that Manigold could leave the first engine to realign a

      switch on the track.


[6]   Crystal and her companions approached the stopped train at a street crossing.

      Next, they walked over to a grassy area nearer to the train. Washington and his

      friend climbed up between two cars, went across the coupler that joined them,

      and jumped down to the ground on the other side of the train. Crystal had

      never climbed over a stopped train before. She climbed up between the cars,

      and the train lurched forward, without warning, as she climbed across the

      coupler. Crystal fell onto the tracks and the train rolled over her, injuring her

      legs. Her left leg was severed at the scene, and her right leg had to be surgically

      amputated later.




      Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017   Page 3 of 10
[7]    After the accident, Crystal was unable to continue living near train tracks

       because the sound of the train “made me panic. I just really couldn’t deal with

       it.” Id. at 75. She left school and was homeschooled for a while. Later, she

       moved to her own apartment, but she did not “go outside anymore” unless she

       had to. Id. at 78.

                                                                                       2
[8]    Crystal and Stephan sued CSS, Manigold, and Cummings, claiming

       negligence. They also sued Washington, asserting he was a necessary party to

       the case. Washington filed a cross-claim against CSS, alleging negligence.


[9]    CSS filed a motion for summary judgment. The Williamses and Washington

       filed a response, and CSS filed a reply. The court held oral argument and

       granted CSS’s motion. This appeal followed.


[10]   Crystal, Stephan, and Washington argue the trial court should not have granted

       summary judgment to CSS. The Indiana Supreme Court has stated that a party

       seeking summary judgment must meet a “relatively high bar.” Hughley v. State,

       15 N.E.3d 1000, 1004 (Ind. 2014). The Court explained:

                Summary judgment is a desirable tool to allow the trial court to
                dispose of cases where only legal issues exist. But it is also a
                blunt instrument, by which the non-prevailing party is prevented
                from having his day in court. We have therefore cautioned that
                summary judgment is not a summary trial, and the Court of
                Appeals has often rightly observed that it is not appropriate
                merely because the non-movant appears unlikely to prevail at



       2
        We refer to the three appellees collectively as CSS for the remainder of the opinion unless otherwise
       appropriate.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017             Page 4 of 10
               trial. In essence, Indiana consciously errs on the side of letting
               marginal cases proceed to trial on the merits, rather than risk
               short-circuiting meritorious claims.

       Id. at 1003-1004 (quotations, ellipsis, and citations omitted). Summary

       judgment is rarely appropriate in negligence cases because they are fact

       sensitive and are governed by a standard of the objective, reasonable person.

       Rhodes v. Wright, 805 N.E.2d 382 (Ind. 2004). Such a standard is best applied

       by a finder of fact after hearing all the evidence. Id.


[11]   On review of a motion for summary judgment, our standard of review is the

       same as that of the trial court. City of Beech Grove v. Beloat, 50 N.E.3d 135 (Ind.

       2016). Summary judgment is appropriate only where “the designated

       evidentiary matter shows that there is no genuine issue as to any material fact

       and that the moving party is entitled to judgment as a matter of law.” Ind. Trial

       Rule 56(C). Thus, a party requesting summary judgment must put forward

       undisputed material evidence that negates at least one element of a claim.

       Rhodes, 805 N.E.2d 382. The facts and reasonable inferences are construed in

       favor of the non-moving party. City of Beech Grove, 50 N.E.3d 135. We may

       consider only the evidence designated by the parties. Id. The appellant bears

       the burden of demonstrating the trial court erred. Whitmore v. South Bend Pub.

       Transp. Corp., 7 N.E.3d 994 (Ind. Ct. App. 2014), trans. denied.


[12]   To prevail on a claim of negligence the plaintiff must show (1) a duty owed by

       the defendant; (2) breach of that duty; and (3) an injury to the plaintiff

       proximately caused by the breach. Schmidt v. Indiana Ins. Co., 45 N.E.3d 781


       Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017   Page 5 of 10
       (Ind. 2015). The question of whether a duty was owed is generally a question

       of law, but the existence of a duty sometimes depends on underlying facts that

       require resolution by the trier of fact. Rhodes, 805 N.E.2d 382. Whether an act

       or omission is a breach of one’s duty is generally a question of fact for the jury.

       Winchell v. Guy, 857 N.E.2d 1024 (Ind. Ct. App. 2006).


[13]   Crystal, Stephan, and Washington alleged that CSS was negligent. CSS argued

       in its motion for summary judgment that it owed no duty to Crystal, Stephan,

       or Washington under the doctrine of premises liability. Pursuant to that

       doctrine, a person entering upon the land of another comes upon the land as an

       invitee, a licensee, or a trespasser, and the person’s status defines the duty, if

       any, owed by the landowner to the visitor. Christmas v. Kindred Nursing Ctrs. Ltd.

       P’ship, 952 N.E.2d 872 (Ind. Ct. App. 2011). Premises liability applies only to

       parties that own or occupy the land. Duffy v. Ben Dee, Inc., 651 N.E.2d 320 (Ind.

       Ct. App. 1995), trans. denied.


[14]   CSS has failed to provide sufficient facts to allow us to determine whether, as a

       matter of law, CSS owed no duty to Crystal, Stephan, and Washington under

       the doctrine of premises liability. The parties cite several Indiana cases in

       which premises liability applied to alleged torts on properties that were owned

       by a defendant railroad. See, e.g., Chicago, South Shore & South Bend R.R. Co. v.

       Sagala, 140 Ind. App. 650, 221 N.E.2d 371 (1966) (the victim, a child, was a

       trespasser and was not owed a duty of reasonable care by owner of railroad

       tracks); New York Cent. R.R. Co. v. Wyatt, 135 Ind. App. 205, 184 N.E.2d 657

       (1962) (owner of railroad tracks owed duty to truck driver in relation to
       Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017   Page 6 of 10
       accident at a railroad intersection), trans. denied; see also Ind. Harbor Belt R.R. Co.

       v. Jones, 220 Ind. 139, 41 N.E.2d 361 (1942) (owner of railroad switch track

       owed no duty to child injured while playing in freight car on track); Terre Haute

       I. & E. Traction Co. v. Sanders, 80 Ind. App. 16, 136 N.E.54 (1922) (owner of

       train track owed duty to plaintiff’s estate because victim was licensee).


[15]   In this case, the record clearly establishes that CSS does not own the tracks

       upon which its train sat. Instead, NICTD owns the railroad line, and CSS has

       “trackage rights” to use it. Appellants’ App. Vol. III, p. 7. The nature of CSS’s

       trackage rights and responsibilities is undefined in the record. It appears that

       CSS has the right to move its trains on NICTD’s tracks, but that alone is

       insufficient to establish that CSS is an occupier of the tracks for purposes of

       premises liability. See Duffy, 651 N.E.2d 320 (theory of premises liability did

       not apply to contractor who placed a bulldozer on an employer’s land to

       complete a project, even though plaintiff was injured climbing on the bulldozer;

       the contractor was not considered an owner or occupier, and the bulldozer was

       not a permanent fixture of the land). Based on the incomplete record before us,

       the doctrine of premises liability does not establish the absence of a duty.


[16]   If the trial court’s grant of summary judgment can be sustained on any theory or

       basis in the record, we will affirm. Whitmore, 7 N.E.3d 994. Thus, we must

       consider whether, as a general proposition, the law as applied to the facts of this

       case established the absence of a duty by CSS to Crystal, Stephan, and

       Washington regardless of the applicability of the doctrine of premises liability.

       The Indiana Supreme Court has stated:

       Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017   Page 7 of 10
               It is the law, widely recognized and declared, that although a
               railroad crossing is not a public street on [sic] highway, it
               becomes a public crossing so as to impose upon a railroad
               company the same duty of exercising reasonable care and the
               same liability for a breach of it as a public crossing where the
               company has by some act or designation invited or induced
               persons to so regard and use it.

       Lake Erie & W. R.R. Co. v. Fleming, 183 Ind. 511, 109 N.E. 753, 755 (1915).


[17]   In another case, the Indiana Supreme Court noted there is a line of cases

       “imposing a duty of reasonable care and lookout where railroad tracks pass at

       street level through a city or town.” Sagala, 221 N.E.2d at 375; see also Stratton

       v. Southern Ry. Co., 190 F.2d 917 (4th Cir. 1951) (plaintiff established jury

       question on claim of negligence; evidence showed railroad blocked street for

       long periods of time in city, and persons customarily climbed through the cars

       such that railroad knew or should have known of crossings and should have

       given a warning signal before moving).


[18]   In this case, at the time of the incident Crystal and Stephan lived in Gary across

       a street from the train tracks. The tracks ran at street level in that area, next to a

       state highway and across several city streets. Crystal and Stephan’s house was

       located between two street crossings. On prior occasions, Crystal had always

       used a street crossing to cross the tracks on foot. She frequently saw other

       people cross the tracks at locations other than the street crossings, and there

       were no “no trespassing” signs by the tracks. Appellants’ App. Vol. II, p. 83.

       Crystal saw trains come by frequently, day and night. She also noticed that the

       trains would stop for long periods of time, “sometimes for hours.” Id. at 84.

       Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017   Page 8 of 10
       When the trains stopped, they blocked both street crossings near her house.

       Stephan also saw trains parked on the tracks near his home, sometimes for two

       to three hours, especially at night. Both Crystal and Stephan observed that the

       trains blew their whistles “every time they start[ed] back up again.” Id. at 86.


[19]   Stephan and several other residents in that area had seen people climb across

       stopped trains in that location in the past, day and night, at the street crossings

       or at other parts of the line. According to several residents who provided

       affidavits, the practice of climbing across stopped trains in that area went back

       several decades.


[20]   On the night in question, Crystal was in a hurry to get home because she was

       out past her curfew. As she, Washington, and Washington’s friend approached

       the tracks, she saw a train stopped there, blocking the street. Next, they walked

       away from the street crossing, to a grassy area, where Washington and his

       friend crossed the train by climbing up between two cars and jumping to the

       ground. Crystal climbed onto the train, but it moved suddenly, without

       warning, and she fell to the ground and was grievously injured. The train did

       not sound its whistle before moving. Manigold conceded that according to the

       “black and white” letter of the safety rulebook, the whistle should have sounded

       before the train began moving again. Id. at 131-32.


[21]   Applying the law to these facts, we conclude that CSS knew or should have

       known that people were climbing across their stopped trains in that busy urban

       area, and that it is reasonable to conclude CSS had a duty to warn people near


       Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017   Page 9 of 10
       the tracks that the trains were preparing to move. In addition, there is at least a

       dispute of fact as to whether CSS breached its duty by failing to give such a

       warning.


[22]   CSS argues that it is unlikely that its trains would have stopped in that area for

       hours at a time, citing its published schedules. It further notes the specific train

       in question stopped for only ninety seconds. CSS also asserts Crystal conceded

       in her deposition that the train’s crew would not have had any specific reason to

       know she and her companions were climbing across the train. Finally, CSS

       argues that, according to CSS safety rules, its crew was not obligated to sound

       the whistle before beginning to move the train. These arguments are all

       requests to consider the evidence in the light most favorable to the movant,

       which our standard of review forbids.


[23]   The trial court erred by granting CSS’s motion for summary judgment. It is

       unnecessary to address the element of probable cause because there are disputes

       of fact as to whether a duty existed and whether CSS breached a duty. For the

       foregoing reasons, we reverse the judgment of the trial court and remand for

       further proceedings.


[24]   Judgment reversed and remanded.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A04-1612-CT-2819 | June 16, 2017   Page 10 of 10
