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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit
                                      No. 16-30480                           FILED
                                                                     September 14, 2018

KANSAS CITY SOUTHERN RAILWAY COMPANY,                                   Lyle W. Cayce
                                                                             Clerk
              Plaintiff–Appellant Cross–Appellee,

v.

DSK LIMITED; DEWEY S. KENDRICK, III; PRAETORIAN INSURANCE
COMPANY; 3 V PARTNERSHIP; STEVEN D. VINSON; DONNA SMITH
VINSON; STEVEN B. VINSON; AMERICAN RELIABLE INSURANCE
COMPANY,

              Defendants–Appellees Cross–Appellants.




                  Appeals from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:13-CV-2157


Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       This case arises out of the derailment of a Kansas City Southern Railway
Co. (KCS) train at a private crossing after the rails at the crossing were
damaged by heavy equipment being used to service property controlled by DSK
Limited, 3-V Partnership, and the individual defendants (collectively, the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 16-30480
Landowners). Applying Louisiana law, the district court granted summary
judgment in favor of the Landowners and their insurance companies,
determining that the Landowners were not vicariously liable for the actions of
a third-party operator who caused the damage and that they owed no duty to
KCS. It denied summary judgment on the issue of lost profits, but, because
the Landowners were not vicariously liable and did not owe KCS any duty, it
dismissed KCS’s claims against all defendants. Cross appeals followed. We
affirm.
                                      I
      Dewey S. Kendrick is the managing partner of DSK, which owned a tract
of farmland subject to KCS’s right of way. Steven Vinson is the managing
partner of 3-V, which leased the land from DSK for farming purposes. The
property can be accessed only by a private road that traverses the railroad
tracks. This private road is maintained exclusively by 3-V under the terms of
its lease with DSK. KCS maintains its tracks. It posted a sign at the private
crossing that read “REPORT PROBLEM OR EMERGENCY” and that listed
its phone number. DSK and 3-V had previously moved low-clearance vehicles
and farm equipment across the private crossing, which sloped up to the tracks.
      Precision Land Leveling (Precision) performed significant land leveling
work on an adjacent property, also leased by 3-V. Vinson contacted DSK to
inquire about having Precision perform relatively minor maintenance work on
the private road on the DSK property, estimated to take about thirty minutes.
DSK consented to the work, which required land-leveling equipment to
traverse the tracks at the private crossing. Precision agreed to do the “small
job” as a favor because 3-V was a “good customer.” There was no separate
contract for the work on the DSK property, no agreement that there would be
payment, and no exchange of compensation after the work was completed. On


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                                  No. 16-30480
the morning of the derailment, Vinson showed a Precision operator where to
obtain dirt for the work and what work needed to be done.
      To perform the work on the DSK property, Precision used long, heavy
scrapers that allowed the tractor operator to raise or lower the scraper. A
scraper blade that was not raised high enough caught on and displaced one of
the rails. Within hours of Precision finishing work on the DSK road, a KCS
train derailed at the crossing. Neither Vinson, Kendrick, nor any of their
employees were present when the work was performed that afternoon. The
work was not inspected prior to the derailment.
      KCS filed this diversity action against Precision, DSK, 3-V, the
individual defendants, and their insurers. KCS settled with Precision and
Precision’s insurer and pursued its claims against the remaining defendants.
KCS asserts claims against the Landowners based on alleged vicarious liability
for Precision’s acts as well as independent negligence.
      The defendants filed motions for summary judgment as to causation,
independent contractor status and duty, and vicarious liability. American
Reliable, the Landowners’ insurer, moved for partial summary judgment on
the issue of the inclusion of KCS’s lost profits in the damages calculation. KCS
moved to strike the affidavits of Vinson and Kendrick. The district court held
oral argument on the above motions and, upon taking the matter under
advisement, granted summary judgment in favor of the Landowners on the
issues of independent contractor status and duty. The court denied summary
judgment on causation as moot; denied summary judgment on the issue of
vicarious liability; denied summary judgment on the lost profits claims; and
granted and denied in part the motion to strike. The court dismissed KCS’s
claims. Cross appeals followed.




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                                              II
       We review a district court’s evidentiary ruling, including a decision
whether to strike an affidavit, for abuse of discretion. 1 If the court determines
the district court did abuse its discretion, harmless-error analysis applies. 2
The affidavits of Kendrick and Vinson are based on the personal knowledge of
the affiants, are not facially defective, 3 and, at any rate, are merely repetitive
of other evidence, including the deposition testimony of the two individuals.
Any error in admitting the affidavits would therefore be harmless. 4
Concluding that the court did not abuse its discretion in considering the
affidavits and that any potential error would be harmless, we turn to the
merits of the district court’s grant of summary judgment.
                                             III
       This court reviews a district court’s grant of summary judgment de
novo. 5 Summary judgment is proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits filed in
support of the motion, show 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.” 6
“The evidence of the non-movant is to be believed, and all justifiable inferences
are to be drawn in his favor.” 7 However, “the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly


       1 Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 285 (5th Cir. 2006); Kelly v.
Boeing Petroleum Servs., Inc., 61 F.3d 350, 356 (5th Cir. 1995); Richardson v. Oldham, 12
F.3d 1373, 1378 (5th Cir. 1994).
       2 FED. R. CIV. P. 61; Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 581 (5th Cir.

2004).
       3 See FED. R. CIV. P. 56(c)(4).
       4 See Kanida, 363 F.3d at 581; Richardson, 12 F.3d at 1378.
       5 Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 859 (5th Cir. 2004).
       6 Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003) (per curiam) (citing FED. R. CIV.

P. 56(c)).
       7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).



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supported motion for summary judgment; the requirement is that there be no
genuine issue of material fact.” 8
                                             IV
                                              A
       Under Louisiana law, “[m]asters and employers are answerable for the
damage occasioned by their servants and overseers, in the exercise of the
functions in which they are employed.” 9                However, “responsibility only
attaches[] when the masters or employers . . . might have prevented the act
which caused the damage, and have not done it.” 10 “[B]y inquiring into the
overall relationship of the parties and the element of control,” Louisiana courts
have “established reasonable definitions and limitations of vicarious
liability.” 11 “It is the [r]ight of control of the time and physical activities in the
other party and the existence of a close relationship between the parties which
determine that one is a servant.” 12 If the relationship is of contractee and
independent contractor, there is generally no vicarious liability. 13
       When neither an independent contractor nor employer-employee
relationship exists, a relationship may be characterized as that of principal
and agent. 14 Though a master may be liable for the torts of his servant, and
an employer for the torts of his employee, “a principal is not liable for the



       8 Id. at 247-48.
       9 LA. CIV. CODE ANN. art. 2320.
       10 Id.
       11 Blanchard v. Ogima, 215 So. 2d 902, 905 (La. 1968).
       12 Id.; see also Hickman v. S. Pac. Transp. Co., 262 So. 2d 385, 391 (La. 1972) (noting

that when determining “whether a relationship is that of independent contractor or that of
mere servant,” the “control over the work reserved by the employer” is critical and is judged
“not [by] the supervision and control which is actually exercised,” but rather by “whether,
from the nature of the relationship, the right to do so exists”).
       13 Thompson v. Winn-Dixie Montgomery, Inc., 181 So. 3d 656, 665 (La. 2015).
       14 See Blanchard, 215 So. 2d at 906 (discussing various employment relationships

under Louisiana law).

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physical torts of a [n]on-servant agent.” 15 “A non-servant agent contributes to
the business of his employer, but he is not such a part of it that his physical
acts and the time to be devoted to the business are subject to control.” 16
        “In      determining          whether        an       employment          relationship
exists[,] . . . [Louisiana jurisprudence] has uniformly held that the most
important element to be considered is the right of control and supervision over
an individual.” 17 Louisiana’s Supreme Court has considered various factors in
assessing control, including “the selection and engagement of the worker, the
payment of wages and the power of control and dismissal.” 18 Other cases have
relied on the factors set forth in Hickman to determine whether the requisite
control exists. 19 We have noted that, though many factors may be considered
in assessing the relationship, “no single factor is determinative of an
employment or independent contractor relationship.” 20
      Mindful that “[t]he element of control that distinguishes an employee
from an independent contractor focuses on whether the purported employer
had the right to control the method and means by which the individual



       15  Id.
       16  Id. at 907.
        17 Savoie v. Fireman’s Fund Ins. Co., 347 So. 2d 188, 191 (La. 1977) (citing Hickman,

262 So. 2d 385; Blanchard, 215 So. 2d 902).
        18 Id.; Hillman v. Comm-Care, Inc., 805 So. 2d 1157, 1162 (La. 2002).
        19 See Tower Credit, Inc. v. Carpenter, 825 So. 2d 1125, 1129 (La. 2002) (summarizing

the factors as follows: “(1) there is a valid contract between the parties; (2) the work being
done is of an independent nature such that the contractor may employ non-exclusive means
in accomplishing it; (3) the contract calls for specific piecework as a unit to be done according
to the independent contractor’s own methods, without being subject to the control and
direction of the principal, except as to the result of the services to be rendered; (4) there is a
specific price for the overall undertaking agreed upon; and (5) the duration of the work is for
a specific time and not subject to termination or discontinuance at the will of either side
without a corresponding liability for its breach”); Hughes v. Goodreau, 836 So. 2d 649, 656
(La. Ct. App. 2002) (applying Hickman, 262 So. 2d at 390-91); Cliburn v. Police Jury Ass’n of
La, Inc., 770 So. 2d 899, 903-04 (La. Ct. App. 2000) (same).
        20 Newcomb v. N.E. Ins. Co., 721 F.2d 1016, 1019 (5th Cir. 1983).



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performed the work tasks,” 21 we conclude that the record cannot support a
finding of an employment relationship between the Landowners and Precision
that would give rise to vicarious liability. Despite KCS’s strenuous assertions
that Vinson exercised (or could have exercised) control over Precision’s work,
the record belies this characterization. The record shows that Precision agreed
to perform the work for 3-V as a favor before removing its equipment from the
area and that Vinson showed a Precision employee where he could obtain dirt
and what needed to be repaired. There is no indication that Vinson did or could
have exercised any control over how Precision performed the work, what
equipment it dedicated to the task, how Precision’s employees would be
deployed, or what they would be paid. Precision was apparently free to use its
own judgment and methods, as it saw fit, to repair the road. Neither Vinson
nor any other 3-V or DSK employee was present when the work was done, and
KCS does not point to any evidence suggesting the Landowners had any
interest in the work except in the result. KCS has not offered any factual
support for its assertion that Vinson could have controlled Precision’s
employees, their time, or the manner of their performance. 22 Nor is there any
suggestion that the Landowners could have selected or dismissed any of
Precision’s workers.
     It seems clear that, though Precision certainly contributed to the
Landowners’ business by performing necessary road maintenance, it was “not
such a part of it that [its] physical acts and the time to be devoted to the
business [were] subject to [the Landowners’] control” 23         Based on the totality
of the circumstances, a reasonable person could conclude only that Precision


      21 Hillman, 805 So. 2d at 1164.
      22 See FED. R. CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986);
Anderson v. Liberty Lobby, 477 U.S. 242, 251-52 (1986).
      23 Blanchard v. Ogima, 215 So. 2d 902, 905 (La. 1968).



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was an independent contractor or non-servant agent of 3-V and DSK. 24 Such
a relationship cannot support the imposition of vicarious liability as a matter
of Louisiana law.
                                              B
       “[G]enerally, a principal is not liable for the offenses committed by an
independent contractor while performing its contractual duties.” 25 Louisiana
recognizes two exceptions to this rule. A principal will be liable for the offenses
of an independent contractor (1) “where the work is ultra-hazardous” or (2) “if
the principal reserves the right to supervise or control the work of the
independent contractor.” 26         “The critical inquiry in determining whether
activity is ultrahazardous or inherently dangerous is whether it can be made
safe when it is performed in a proper and workmanlike manner.” 27
       The evidence indicates that, when properly elevated, the scraper blades
posed no danger to the tracks. KCS has not presented any evidence that
crossing with the scrapers properly elevated was unsafe. KCS argues that
Louisiana Revised Statute § 32:174, which requires equipment operators to
provide notice before crossing a railroad with certain heavy equipment,
indicates the legislature “recognized the inherent danger” in equipment such
as that used by Precision when crossing railroads.                   However, the traffic
regulation applies only to operators of machinery travelling on public roads,




       24  See Newcomb, 721 F.2d at 1018-19 (determining summary judgment on
independent contractor status appropriate when there is no dispute over the powers of control
and no contrary signals as to the nature of the relationship, or when a reasonable person
“could reach but one conclusion”).
       25 Thompson v. Winn-Dixie Montgomery, Inc., 181 So. 3d 656, 665 (La. 2015).
       26 Id.
       27 Sims v. Cefolia, 890 So. 2d 626, 632 (La. Ct. App. 2004); accord Buras v. Lirette, 704

So. 2d 980, 983-84 (La. Ct. App. 1997).

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and does not, by itself, indicate that the scrapers could not travel across the
tracks safely.
       KCS’s argument that the Landowners gave “express or implied
authorization to an unsafe practice” is also unavailing. The cases KSC cites
are distinguishable because they concern an owner or principal knowingly
authorizing, instructing, directing, or permitting the independent contractor
to engage in an unsafe practice. 28 There is no evidence that the Landowners
authorized or otherwise directed Precision to operate the machinery
unsafely. 29 We therefore agree with the district court that KCS cannot, as a
matter of law, sustain its theory of vicarious liability.
                                              V
       KCS alternatively asserts the Landowners’ independent negligence as a
basis for liability.      Under Louisiana law, “[t]he threshold issue in any
negligence action is whether the defendant owed the plaintiff a duty, and
whether a duty is owed is a question of law.” 30
       Louisiana imposes a general duty of care under Louisiana Civil Code
Article 2315. 31 To determine whether a duty is owed, the court asks “whether
the plaintiff has any law—statutory, jurisprudential, or arising from general
principles of fault—to support his claim.” 32 KCS asserts that the Landowners


       28  See, e.g., Alexander v. Lowes Cos., 701 So. 2d 239, 243 (La. Ct. App. 1997).
       29  Cf. id. (testimony indicated principal may have knowingly authorized independent
contractor to operate machinery unsafely and without insurance).
        30 Milbert v. Answering Bureau, Inc., 120 So. 3d 678, 687-88 (La. 2013) (quoting Hanks

v. Entergy Corp., 944 So. 2d 564, 579 (La. 2006)) (requiring a plaintiff asserting a negligence
claim to prove: “(1) whether the defendant had a duty to conform his conduct to a specific
standard of care; (2) whether the defendant’s conduct failed to conform to the appropriate
standard of care; (3) whether the defendant’s substandard conduct was a cause-in-fact of the
plaintiff’s injuries; (4) whether the defendant’s substandard conduct was a legal cause of the
plaintiff’s injuries; and (5) whether the plaintiff was damaged”).
        31 LA. CIV. CODE ANN. art. 2315(A) (“Every act whatever of man that causes damage

to another obliges him by whose fault it happened to repair it.”).
        32 Maw Enters., L.L.C. v. City of Marksville, 149 So. 3d 210, 217 (La. 2014) (quoting

Hardy v. Bowie, 744 So. 2d 606, 614 (La. 1999)).
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owed a general duty of care to KCS and had “assumed the duty to employ
reasonable safety practices, including providing spotters or notifying KCS of
‘problems’ so that [KCS] could take appropriate safety precautions including
providing certified spotters.” KCS also asserts there is a material question of
fact as to whether the Landowners are liable to KCS under the theory of garde
based on unreasonably dangerous conditions of the private road.
      The district court rejected each of these bases for a finding of a duty owed
to KCS, concluding that the Landowners did not assume a duty to provide
spotters and that there was nothing inherently dangerous about the slope of
the road. It further concluded that the Landowners had no duty to warn KCS
that the equipment would be traversing the tracks. We agree with the district
court’s well-reasoned opinion.
                                            A
      KCS argues that the Landowners had previously used spotters when
crossing the tracks with low-clearance vehicles and therefore had assumed a
duty to provide spotters on this occasion as well. Under Louisiana law, a
defendant assumes a duty when he “(1) undertakes to render services, (2) to
another, (3) which the defendant should recognize as necessary for the
protection of a third person.” 33
      Here, there is no evidence that the Landowners undertook to provide
spotters for KCS, and the cases on which KCS relies are easily distinguishable.
In Harris v. Pizza Hut of Louisiana, Inc., the Louisiana Supreme Court held
that a “business which undertakes to hire a security guard to protect itself and
its patrons is liable for physical harm which occurs because of negligence on
the part of that guard.” 34 However, the Landowners did not hire spotters, nor


      33 Hebert v. Rapides Par. Police Jury, 974 So. 2d 635, 643 (La. 2007).
      34 455 So. 2d 1364, 1369, 1371 (La. 1984) (“Whether this Pizza Hut had a duty to hire
security guards is irrelevant.”).
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is there any allegation that any of the Landowner’s employees were present—
much less acting negligently—at the time the damage occurred. In Barnes v.
Bott, a school board was held to have assumed a duty to verify that crossing
guards would be present when the board had notified parents that guards
would be present and had monitored guard attendance. 35                     Here, the
Landowners never indicated to KCS that they would provide spotters, nor is
there evidence that KCS was relying on the Landowners to do so. Because the
Landowners did not undertake to perform any service for KCS, there can be no
assumption of duty.
                                           B
       KCS argues that the slope of the road made Precision’s operation
dangerous and that the Landowners’ duty to maintain the road around the
crossing forms a basis for liability to KCS under the Louisiana concept of garde,
or custody. Under Louisiana law, a person is responsible for damage caused
by “things which we have in our custody.” 36 “[T]he person who has the garde
of a thing shall be strictly liable for damage caused another by the vice or defect
of the thing, his legal responsibility being based on the breach of his legal
obligation to keep his thing in such condition that it does no damage to
others.” 37
       Though the record indicates the road was sloped up to the crossing, there
is no evidence of any defect in the road. KCS’s own representative said in his
deposition that there was nothing wrong with the road, and that the slope was
gradual. Though KCS asserts that the Landowners had a duty to warn of and
protect against any unsafe defect in their road, KCS has not offered any



       35 571 So. 2d 183, 184-86 (La. Ct. App. 1991).
       36 LA. CIV. CODE ANN. art. 2317.
       37 Marshall v. Air Liquide-Big Three, Inc., 107 So. 3d 13, 39 (La. Ct. App. 2012)

(alteration in original) (quoting King v. Louviere, 543 So. 2d 1327, 1328 (La. 1989)).
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evidence to suggest the slope or condition of the road was problematic (i.e., that
the Landowners breached their duty to maintain the road in reasonably safe
condition), necessitating any such notification. No reasonable fact-finder could
find the Landowners’ duty to maintain their road in reasonably safe condition
or to warn of any unsafe condition has any applicability to the accident in this
case. Accordingly, we agree with the district court that this argument fails.
                                              C
       To the extent that KCS argues that Landowners should have notified
KCS of the operation of the machinery based on statutory obligation, these
arguments are unpersuasive. 38 The statute requires an operator of heavy
equipment to notify the railroad of an intended crossing; any duty under the
statute would be thus owed by Precision. 39 Because, as discussed above, the
Landowners are not liable for Precision’s negligence, we agree with the district
court’s conclusion that the Landowners did not owe any statutory duty to KCS.
                                             VI
       Based on a review of the record evidence, pleadings, briefing, arguments,
and applicable law, we agree with the district court that KCS has failed to raise
any genuine dispute of material fact as to either its theory of vicarious liability
or independent negligence. Our determination of non-liability on these points
renders the issues of causation and lost profits moot, and we decline to reach
them here.
                                     *         *        *
       For the foregoing reasons, we AFFIRM the district court’s judgment.




       38 See LA. STAT. ANN. § 32:174.
       39 Id. This statute is part of the Louisiana Highway Regulatory Act, and arguably
inapplicable to a private crossing. However, to the extent it is applicable, it places the duty
to notify on the operator or driver, not on the landowner. Id.
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