                            IN THE SUPREME COURT OF MISSISSIPPI

                                        NO. 2001-CA-01518-SCT

LINDA TAYLOR, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE OF JOHN
JASON GABLE, DECEASED
v.
MISSISSIPPIAN RAILWAY, INC.



DATE OF JUDGMENT:                                  8/28/2001
TRIAL JUDGE:                                       HON. FRANK A. RUSSELL
COURT FROM WHICH APPEALED:                         ITAWAMBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            ROY JOSEPH FARRELL
ATTORNEY FOR APPELLEE:                             J. DOUGLAS FORD
NATURE OF THE CASE:                                CIVIL - PERSONAL INJURY
DISPOSITION:                                       AFFIRMED - 09/19/2002
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                    10/10/2002



      BEFORE SMITH, P.J., COBB AND DIAZ, JJ.

      DIAZ, JUSTICE, FOR THE COURT:

¶1. On April 9, 1998, John Jason Gable was riding his Yamaha four-wheel all-terrain vehicle (ATV)
between the rails of a railroad track owned by the Mississippian Railway, Inc. (Mississippian) when he hit a
pile of rocks and lost control of his ATV. Gable died as a result of the accident. Linda Taylor, Gable's
mother, filed this wrongful death action against the Mississippian contending that the Mississippian was liable
for the death of her son because it was negligent in failing to maintain the tracks and that the negligence
created a hazardous condition that resulted in the accident that caused the death of Gable. Taylor also
contended that the Mississippian was negligent because it failed to warn the "traveling public" of the alleged
danger existing on the railroad tracks.

¶2. Following discovery, the Mississippian moved for summary judgment contending that Gable was
trespassing at the time of the accident and that there was no proof that the Mississippian willfully and
wantonly injured him. The Mississippian contended that there was no genuine issue as to any material fact
and that it was entitled to judgment as a matter of law. The Circuit Court of Itawamba County, the
Honorable Frank A. Russell, presiding, agreed with the Mississippian and granted the motion for summary
judgment by order dated August 28, 2001.

                                                   FACTS
¶3. On the morning of April 9, 1998, Gable, a 19 year-old man, left his home, located in the Ironwood
Bluff subdivision in Itawamba County where he had resided with his mother for approximately one month,
to meet Susan Grimes, a fellow employee at Home Care Supply in Tupelo, to catch a ride to work. Gable,
along with Grimes, who lived in Smithville, Mississippi, carpooled to work with other individuals who lived
in the vicinity. On this particular morning, Gable was without a ride to work or to the carpool; therefore, he
rode his ATV in a southerly direction on the railroad tracks from his subdivision toward Smithville. His
mother told him not to ride his ATV on the highway. According to the accident report, Gable hit a pile of
gravel about 12 inches high and apparently went airborne, causing him to be thrown from the ATV. He
suffered massive trauma to his head. According to his mother, Gable typically wore his helmet; however,
she stated that he was not wearing his helmet when she saw his body at the scene of the accident. The
accident occurred about one mile south of the Ironwood Bluff subdivision crossing. "No Trespassing" signs
were posted sometime after the occurrence of the accident.

¶4. Taylor contends that ATV riders consistently used the Mississippian Railway track as a pathway. She
stated in her deposition that when she and her son lived in Smithville, before they moved to Ironwood Bluff,
her son and a friend of his who lived in Ironwood would frequently use the railway tracks to ride ATVs to
each other's home. Taylor stated that it was common knowledge that the trains only ran on Mondays,
Wednesdays, and Fridays. However, she stated that people used the railway as a path on a daily basis. She
named five people, besides her son, who rode down the tracks on ATVs. She stated that there were no
signs stating that a person could not ride an ATV on the tracks, and if a person sat on the tracks, "sooner or
later someone would come down the track" riding an ATV. She believed that the railroad knew that people
used the railway as a path.

¶5. In his deposition testimony, William Carlisle, an engineer and manager for the Mississippian, stated that
he could only remember seeing 5 ATVs within the past 6-8 years on the railways. Carlisle stated he did not
see any ATVs in the area within the vicinity of the accident. Most of the ATVs he saw were south of
Smithville. Color photographs of the railroad tracks were presented during discovery. Taylor contends that
the photographs depict areas on the track that are worn from the frequent use of ATVs. On the other hand,
Carlisle stated that the worn areas inside the tracks did not look like ATV tracks to him. He stated that the
worn areas looked like where the rock has settled where a tamper machine compacted it. A surfacing
machine lifts the lines and straightens the track, as well as forces the rock under the crossties by a squeezing
vibrating tamper. Carlisle stated that he was not aware that people were utilizing the tracks as a pathway.

¶6. According to Carlisle's deposition, the Mississippian did deposit about 8-10 inches of rock on the
railway that was intended for Safe-Trac, a company that repairs railway tracks. The rock could have been
placed on the track "as long as a week or as little amount of time as 24 hours" before Safe-Trac arrived to
repair the tracks by leveling and straightening the rock. Safe-Trac intended to begin the repairs on the day
of the accident.

¶7. Charles Holloway, a Mississippian locomotive engineer, stated in his deposition testimony that he had
seen about four ATVs on the tracks since 1986. He stated that, once, he had seen an ATV on the tracks
closer to Smithville and that he reported seeing that particular ATV to the office. As for the photographs of
the tracks, Holloway also stated that the worn path inside the tracks was where the tampering machine
vibrated the rock down under the railroad. Holloway stated that they had deposited rocks about 6-8 inches
high sometime before the accident. He testified that the train would probably just plow over any rocks piled
higher than 9 inches. Holloway testified that he would be surprised to know that people were riding their
ATVs up and down the railroad tracks.

¶8. On appeal, Taylor sets forth two issues:

      I. DID THE TRIAL COURT ERR IN DETERMINING THAT THE ROCK PLACED ON
      THE RAILROAD CONSTITUTED A "CONDITION OF THE PREMISES" AND THAT
      THE MISSISSIPPIAN'S ACTIONS, IN THAT REGARD, CONSTITUTED PASSIVE
      NEGLIGENCE, AS OPPOSED TO ACTIVE NEGLIGENCE?

      II. DID THE TRIAL COURT ERR IN FAILING TO RECOGNIZE THAT THE
      MISSISSIPPIAN WAS AWARE OF ATV USE ON ITS TRACKS, AND THAT, AS SUCH,
      THE ATV RIDERS WERE LICENSEES AND THE MISSISSIPPIAN HAD A DUTY TO
      WARN THE ATV RIDERS OF OBSTRUCTIONS.

                                                DISCUSSION

¶9. This Court employs a de novo standard of review when reviewing a lower court's grant of summary
judgment. Saucier v. Biloxi Reg'l Med. Ctr., 708 So. 2d 1351, 1354 (Miss. 1998). This Court has held
that it is better to err on the side of denying a motion for summary judgment if a doubt exists as to whether a
genuine issue of material fact exists. Smith County Sch. Dist. v. McNeil, 743 So. 2d 376, 379 (Miss.
1999).

      I. DID THE TRIAL COURT ERR IN DETERMINING THAT THE ROCK PLACED ON
      THE RAILROAD CONSTITUTED A "CONDITION OF THE PREMISES" AND THAT
      THE MISSISSIPPIAN'S ACTIONS, IN THAT REGARD, CONSTITUTED PASSIVE
      NEGLIGENCE, AS OPPOSED TO ACTIVE NEGLIGENCE?

¶10. The duty owed by a landowner to a trespasser or a licensee is to not willfully or wantonly injure them,
a standard of care involving conscious disregard of a known and serious danger. Saucier, 708 So. 2d at
1355 & 1357. Taylor contends that the Hoffman ordinary negligence exception to the willful or wanton
standard should have been applied in this case. See Hoffman v. Planters Gin Co., 358 So. 2d 1008,
1012 (Miss. 1978). For the ordinary negligence standard to apply, Gable would have to be considered a
licensee.

¶11. The Mississippian has at all times contended that Gable did not have permission from the
Mississippian to use its tracks; therefore, it states that Gable was a trespasser. The trial court agreed that
Gable was a trespasser. Based upon our review, this Court also agrees that Gable was a trespasser.
Therefore, any discussion related to the Hoffman exception is moot.

¶12. In Adams ex rel. Adams v. Fred's Dollar Store of Batesville, 497 So.2d 1097 (Miss. 1986), this
Court ruled that the trial court did not err in finding there was no genuine issue of material fact as to Melinda
Adams's status as a trespasser. Adams was injured while driving her car on a private store parking lot
during night hours when the store and parking area were obviously closed to the public. Id. at 1098. Adams
did not have permission to use the parking area as a place to turn around. Similarly, Gable could not have
had any expectation that he had license to use the insides of the railroad tracks as a public pathway.

¶13. The Mississippian states that Taylor has submitted no evidence that shows that the Mississippian was
aware of ATV activity on the railroad tracks in the Ironwood Bluff area. The limited amount of ATV-riding
that Carlisle and Holloway had witnessed was either near Smithville or south of Smithville.

¶14. Carlisle's and Holloway's depositions reveal that they never actually saw any ATVs in the Ironwood
Bluff area or near the scene of the accident. Furthermore, when Carlisle and Holloway saw ATVs on the
railroad tracks, it is not clear whether the ATVs were merely crossing the railroad tracks or actually riding
down the center of the tracks. Although the record reveals that Holloway witnessed and reported perhaps
one ATV utilizing the tracks as a path, this was closer to Smithville and not near the Ironwood Bluff area or
the accident area.

¶15. The Mississippian also argues that the rock pile that allegedly caused the accident was a condition of
the premises. The trial court stated that rock was an integral part of any railroad tracks and could be found
at any point or place up and down a railroad line. The trial court concluded that because the rocks were a
"condition of the premises," the ordinary negligence exception would not apply. Furthermore, the
Mississippian contends that the rock pile that allegedly contributed to the accident was neither hidden nor
concealed. Again, due to Gable's status as a trespasser, the Hoffman exception is not applicable, and
whether the rocks were a condition of the premises is not relevant.

¶16. Taylor cites Archie v. Illinois Cent. Gulf R.R., 709 F.2d 287 (5th Cir. 1983) to support her
argument that the rock pile was not a condition of the premises and constituted active negligence. In
Archie, while attempting to cross a railroad in Jackson, Mississippi, a young boy was badly burned when
he fell on burning crossties that the railroad allegedly placed in a ditch. Id. at 287. The Mississippian, on the
other hand, cites Davis v. Illinois Cent. R.R., 921 F.2d 616 (5th Cir. 1991) (applying Mississippi law) in
support of its argument that the pile of rocks was a condition of the premises. In Davis, the plaintiff was
injured when he tripped on a 4 inch spike that protruded from a railroad tie.

¶17. The distinguishing features of both Archie and Davis are that these cases involved plaintiffs who were
either licensees or who were able to present a jury question as to their status. While these cases might be
determinative if Gable were considered a licensee, they are not applicable to the case sub judice, as Gable's
status was that of a trespasser, not a licensee.

¶18. This Court finds that summary judgment was appropriate in the case sub judice. The evidence clearly
supports a finding that Gable was a trespasser. Taylor's evidence does not reveal that the Mississippian was
aware that ATV riders were using the railroad near the Ironwood Bluff subdivision. Because this Court
finds that Gable was a trespasser, there is no further need to address Taylor's contention that Gable was a
licensee.

      II. DID THE TRIAL COURT ERR IN FAILING TO RECOGNIZE THAT THE
      MISSISSIPPIAN WAS AWARE OF ATV USE ON ITS TRACKS, AND THAT, AS SUCH,
      THE ATV RIDERS WERE LICENSEES AND THE MISSISSIPPIAN HAD A DUTY TO
      WARN THE ATV RIDERS OF OBSTRUCTIONS.

¶19. This issue was discussed along with Issue I. This Court finds that the trial court did not err in its ruling
that the Mississippian was unaware that ATV riders were riding down the inside of the railroad tracks for
public passage near the Ironwood Bluff subdivision. Therefore, Gable was appropriately labeled a
trespasser.

                                                CONCLUSION
¶20. Based on the foregoing reasons, this Court affirms the trial court's order granting summary judgment to
the Mississippian.

¶21. AFFIRMED.

     PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, COBB, EASLEY, CARLSON
     AND GRAVES, JJ., CONCUR.
