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Calhoun v CSX Transportation, Inc.

Case No. 2009-SC-000100-DG (KY S.Ct., Jan. 20, 2011)

I . Introduction

This is an appeal from a summary judgment order, entered by the Bullitt Circuit Court and affirmed by the Court of Appeals, in favor of Appellees, CSX Transportation, Inc., and one of its engineers. Appellants, Mary and Jesse Calhoun, contend that summary judgment was not appropriate. We accepted discretionary review to consider Appellants' contentions and for, the reasons stated below, affirm in part and reverse in part.

The crux of the present controversy centers around whether the particular railroad crossing was public or private, and the corresponding duty a railroad owes at such crossing. Generally speaking, at a private crossing, a railroad has no duty of lookout, or to warn (unless it knows that a person is in actual peril of being struck), or to clear vegetation from around its right-of-way . Yet, this minimal duty at private crossings is enhanced in three instances: where a different duty was assumed; if the crossing is, or becomes, ultrahazardous ; or where, by pervasive use, the character of a private crossing has changed to a public one.

II. Background

This case arises out of a non-fatal railroad accident at a crossing in Bullitt County, where a CSX train, operated by Paul L. McClintock, Jr., the engineer, collided with a car driven by Mary Calhoun. As part of her morning routine for three months prior to the accident, Mary drove her sons to work at Bullitt County Sanitation (Sanitation Company), a privately owned company. In doing so, she traversed an unnamed, partially gravel road (the road), which eventually crossed a single set of CSX's north-south railroad tracks at the crossing in question. The Sanitation Company was located on the west side of the crossing. So, her approach in the morning was from east to west and her exit was the reverse.

CSX's track sets in a sixty-six foot right-of-way which perpendicularly intersects the road . This crossing (the BCS crossing) is marked with crossbucks, but has no other warning signs; there is no whistle boards immediately prior to the crossing. Additionally, on the Sanitation Company side of the crossing, there is a tree line stretching north into the horizon, running parallel with CSX's right-of-way . Furthermore, at the time of the accident, there was extensive vegetation growth along the Sanitation Company's side of the crossing.


Judge(s): Will T. Scott
Jurisdiction: Kentucky Supreme Court
Related Categories: Transportation
Supreme Court Judge(s)
Lisabeth Abramson
Bill Cunningham
John Minton, Jr.
Mary Noble
Wil Schroder
Will Scott
Daniel Venters

Appellant Lawyer(s) Appellant Law Firm(s)
Christopher Goode Bubalo Hiestand & Rotman PLC
Kevin Sciantarelli Bubalo Hiestand & Rotman PLC

Appellee Lawyer(s) Appellee Law Firm(s)
David Monohan James Thomas Blaine Lewis
Melanie Rughani Mayer Brown LLP
Evan Tager Mayer Brown LLP



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uniformly and invariably signal at the crossing. no. 3738, inc. v. claywell, 736 s .w.2d 328 (ky. 1987) . appellants ask us to 5 stated above, we decline to change this well-settled area of tort law. the possibility that a private railroad crossing posed a hidden danger to the morning, mary calhoun dropped her sons off at the sanitation company, and ordinary care to avoid injuring a person after it discovers her peril. therefore, since "[she] had never encountered a train at the actual crossing." vision of an operator proceeding south." id. furthermore, testimony therefore, we reverse the court of appeals and hold that there is a at a private crossing fell within the ultra-hazardous exception. here, prescriptions for medications that could have impaired his ability. under an traversing the bcs crossing. they assert that csx forbade adjacent landowners conscionability into an unduly harsh doctrine, but still allow railroa mcclintock sounded the train's whistle becomes crucial. see quisenberry, 338 opinion of the court by justice scott q at submitted the case to the jury "on theory that if they found the crossing, due to also, owners of electric power line rights-of-way, in constructing and on review from court of appeals mary's accident) . moreover, it is unclear from gaw which the direction the train 2009-sc-000100-dg a litigant's agent are a form of advocacy. based on the circumstances absence of a signal "is an assurance of safety and the equivalent of an crossbucks, 4 but has no other warning signs; there is no whistle boards condition, and a duty to discover unreasonably dangerous conditions on the s.w .2d 482. 13 consequently, the court of appeals correctly concluded that the crossing is situated on a public road. in deitz' adm'x, we explained, "[flor a louisville 8y n.r. co. v. arrowood's adm'r, 280 ky. 658, 134 s.w.2d 224, 226 the trial court, we should overrule the obsolete doctrine that unreasonably proposed framework is troublesome. the practicality of replacing over a 250 national city tower 17 that case involved what appears to be a public crossing (higby mill road crossing). such as the present one, photos taken of an accident scene are likely used for 1344 south broadway oncoming train."1 5 instead, appellants again urge this court to change the law traveler to rely on that signal. we stated that "[w]here it had been customary tree line, stop, and wait as a train passed over the crossing. was to mary's right; the same direction as the approaching train. 21 goetzman v. wichem, 327 n.w.2d 742 (iowa 1983) litigious purposes. thus, courts must be cognizant that photographs taken by this exception is inapplicable when sixty, seventy-five, one hundred, one actually address whether csx breached this duty.14 rather, they claim that after examining the evidence, we conclude that appellants failed to additionally, and central to the present case, a railroad has no duty to in this day and age, there is no reason why a railroad, crossing through or mayer brown crossing in question. the sanitation company was located on the west side of were pulled by steam locomotives belching smoke and steam that could be s.w.2d at 410 (jury may decide whether railroad company was negligent in not declined to apply the undertaker's doctrine to a different railroad accident at operators must attempt to avoid the injury if they observe the peril in time) . expert's opinions. rather, the conflict between the expert's opinions and the was a highly dangerous crossing and was so constructed that at the outset, the lack of any specificity or contours to appellants' we refuse appellants' request to extract a duty from another area of tort "ultra-hazardous" because of such growth-an issue we will discuss later. further concluded that as long as the dominant estate owner is not causing asking us to utilize broad strokes to re-paint this area, but rather they request additionally, the court of appeals' opinion found that appellants' arguments railroads from the duty to use ordinary care to maintain its property at a owners of natural gas transmission rights--of-way must exercise ordinary care motorist has the traditional duty to exercise ordinary care in the operation of street lamps. id. at issue there was whether lg & e could be held liable for prescription drugs before operating the train. we are not persuaded by this road can only be established in two ways . . . statute [and] . . . dedication."). 12 as noted above, appellants do not contend that this road was established in the crossing, and shortly thereafter ends at the sanitation company. bullitt summaryjudgment is proper when the evidence demonstrates "that of his peril, they fail to use all means to avoid the accident." hunt's adm'r, 254 contend that roberson altered the assumed duty exception. in roberson, we the ,defacto owner. therefore, csx had no duty, under spalding, to maintain the that we essentially whitewash the entire common law framework created over county, there is no evidence that the county ever exercised control over this which part of the vegetation (north or south of the crossing) the court evaluated and county does not maintain this gravel road; rather, testimony in the record and unobtrusive diesel engines in use today, our rule was written when trains its location and surroundings, to be unusually dangerous . . . [they] might 458, 105 s.w .2d 153 (1937)). thus, in order to utilize this exception, a traveler may avail himself of this exception when the railroad current action. photographs, ignored the factual parallels to quisenberry, ignored other inconsistent practices. if a railroad inconsistently signals at the crossing, we fail to based on our common law, the determinative factor is whether the .car at a private crossing. id. at 410. the court described the track as having a ky. 5, 178 s.w.2d 835, 837 (1944) . 17 no duty of care to warn pedestrians or motorists of an approaching train, and company's only duty under the circumstances is to warn a person when he is the issues for which they sought discretionary review. these arguments all having resolved the threshold issue-determining that the crossing is each other . . . [thus] the engineer should have warned of the sanitation company; rather a driver must proceed further west to another road as needed . 10 near shepherdsville, kentucky. other hand, imposes multiple duties on railroads at public crossings. krs i. introduction this is an appeal from a summary judgment order, entered by the bullitt new exception. ,;vuyrrum xxurf of ~6ufurkv "presen[t] at least some affirmative evidence showing that there is a genuine the trial court's summaryjudgment order on all grounds stated above. 2. ultra-hazardous crossing exception 3 one of the adjacent landowner's sons operated the sanitation company. issue of an assumed duty, which we have already addressed. moreover, csx's track sets in a sixty-six foot right-of-way which perpendicularly id. at 411 (emphasis added). the question is whether the crossing: the railroad's virtual immunity from liability at private crossings, i must sounding a horn when approaching an unusually dangerous crossing). to each type of crossing. but, using csx's own words, private crossings are become highly dangerous, and by failing to adequately warn mary by horn or we were to assume that the deeds conveyed this nameless gravel road to bullitt travelling public was nil. with today's opinion, we perpetuate a rule that is the court of appeals, made factual findings based on two of csx's street lamps was not illuminated. id. observed in actual peril of being struck by the train; (2) the crossing was crossing. according to the train's data recorder, however, the whistle was not warning." hunt's adm'r, 254 s.w.2d at 706-707 (emphasis added) . james thomas blaine lewis medical v. mcintosh, 319 s.w.3d 385, 388 (ky. 2010), citing perry v. williamson, to the vegetation and the relevant positioning of the crossing.19 steelvest, 807 is owned by bullitt county as evidenced by two deeds conveying the quisenberry, 338 s.w.2d 409 (ky. 1960) . there we explained that: vegetation removal. id. at 3. the railroad, as servient owner, had no duty "to removing the reliance prong eviscerates the assumed duty exception. by in this commonwealth, it is axiomatic that appellate courts are not fact- stated below, affirm in part and reverse in part. crossing] ." id. that is not to say, however, that the crossing may not become 357, 136 s.w.2d 1 (1940) . spalding involved an allegation that the railroad clear vegetation at private crossings. spalding v. louisville & n.r. co., 281 ky. surrounding lots to bullitt county. summaryjudgment.9 impose upon an electric power line owner or gas line owner crossing though, or intersects the road . this crossing (the bcs crossing) is marked with when exiting the sanitation company, the crossbuck sign (prior to the crossing) 1. the gravel road traversing the bcs crossing is unnamed and not fault also arise. see john s. palmore 8v ronald w. eades, ky . instructions to held that the landowner, as the dominant estate holder, was responsible for road systems of the city of shepherdsville or bullitt county. appellants anything to prevent the accident after they came within view of along the tracks that, at least in part, screened the train from the vehicular such a duty in this context. reasonably find that the railroad company was negligent in not sounding a sounded in the seven seconds prior to impact. shields railroads from the duty to exercise ordinary care for the safety of board of a wagon seat behind one or more horses, which also would not fail to 824 s.w .2d 869 (ky. 1992). that duty would impose no injustice upon the bcs crossing is private. there is no contention that the unnamed gravel road there is a well recognized exception to the general rule [at private was established pursuant to statute and no evidence in the record suggesting 2 the sanitation company is no longer in business . id. at 410-411 . therefore, when a private crossing is ultra-hazardous, the adm'x v. cincinnati, n.o. & t.p. ry. co, 296 ky. 279, 176 s.w.2d 699, 701 accident after it discovered mary calhoun's peril. although difficult to discern iowa supreme court2l he added, "(s)tare decisis does not preclude the change. a matter of law. however, we do not find this persuasive in the present case for from nashville. the train approached from mary's right, traveling at unable to satisfy either prong of the assumed duty exception, appellants at private crossings, our century-old precedent states that a railroad is no duty to use ordinary care to lookout for pedestrians or motorists unless the genuine issue of material fact as to whether the crossing was ultra-hazardous the rule i now condemn came into our jurisprudence in an era when the road: it did not pave it, maintain it, name it, or incorporate it into its road hunt's adm'r v. chesapeake & o. ry. co., 254 s.w.2d 705, 707 (ky. 1952) bubalo, hiestand 8v rotman, plc train's whistle was sounded when they saw mary's car approaching the i do not share the majority's concern that we lack "a proposed neither the engineer nor the [traveler] had enough time to do dissents by separate opinion, in which cunningham, j., joins. 16 we disagree with appellants' claim that the reliance prong rewards railroads for the issue of whether mcclintock violated csx's rules brings us full circle to the amorphous standard that "everyone owes everyone else a duty." instead appellants "propose a significantchange in kentucky railroad vegetation at the bcs crossing. matter of law, cannot avail themselves of this exception. actual [drug] consumption level was." therefore, the court of appeals correctly fact." steelvest, 807 s.w.2d at 480. 6 a railroad owes at such crossing. generally speaking, at a private crossing, a into the state or county road system." they do claim, however, that the road majority's ruling is based upon the century-old doctrine holding that, at a well- train crew actually sees them in a position of imminent peril; it also exempts given by the approaching train and the question of whether whether the bcs crossing was public or private in order to determine the ii. background a genuine issue of material fact for trial." steelvest, 807 s .w.2d at 482. explanatory parts of mary calhoun's deposition,is and erred by failing to allow and in their briefs, appellants concede that they cannot satisfy the above two- finally, appellants again seek to probe mcclintock's pharmacy records. frcp 56(c), the more liberal federal summary judgment standard. neared the crossing; that the railroad had not trimmed the growth of trees the crux of the present controversy centers around whether the crossing is a private one and sufficient evidence is introduced to show habitual law and attempt to remold it into the one-hundred-and-fifty year-old railroad the actual crossing. thus, she could never have relied on a signal to detect an a sign indicating a railroad crossing, shaped like an "x," generally placed tracks could not hide that approaching danger. members of the public using a owes no duty at an ordinary private crossing except to avoid intentionally and mcclintock, as well as the sanitation company and the landowners obtain an unobstructed view of the tracks. furthermore, the court found that actual peril of being struck), or to clear vegetation from around its right-of-way. there is no genuine issue as to any material fact and that the moving party is safely pull past the vegetation and see to the horizon. therefore, the court of electricity exists, owe the highest degree of care and skill to protect all persons 11 it appears our older cases used "public highway" and "public road" interchangeably. occasional customer paying a bill used the crossing. therefore, the court of for trial." id. at 482. with this procedural structure in mind, we review de crossing was private as a matter of law. "blatantly contradicted" appellants' forensic mapping expert's opinions . a passenger's side rear quarter panel, spinning it around, and ejecting her. she freedom to be careless about all but the most "exceptionally dangerous" and his "common law duty to act as a reasonably prudent engineer." however, accordingly, i dissent because i believe that upon remand of this case to we agree with the appellants' contentions that the trial court, as well as the standard quoted in quisenberry-a private crossing case-thus is more surrounding these two photographs, we believe the court of appeals erred b. minimal duty imposed at private crossings crossing cases" are still viable precedent and "a determination of the proper approaching through the tree-line near the crossing. at this point, the parties agree. established "that a person approaching within 34 feet of the crossing would be transportation, inc., and one of its engineers. appellants, mary and jesse whether ky. 310, 270 s .w. 825 (1925) ; illinois cent. r. co. v. applegate's adm'x, 268 ky. failed to sound its horn as it approached the crossing on the dark and foggy this court. that the large cedar tree--which arguably played a part here-was removed after highest court of this state, to shape the development of the common law of 142 s.w. 709 (1912) ; kentucky traction 8a terminal company v. brawner, 208 appellants fail to direct us to a kentucky case wherein we have recognized case no. 2007-ca-001651-mr kevin b. sciantarelli "whether csx had a duty to avoid the accident after discovering [mary's] peril have a duty of ordinary care to maintain their property in a reasonably safe the property it permits and reasonably anticipates. in essence, the railroad csx traiisp., inc., wherein a federal court also concluded that this same crossing kentucky as changing conditions so require. justice charles leibson noted, in (1939) . . on the tracks is not what this appeal is about." century's worth of private crossing tort law-and we might add, other specific mrs. calhoun of her own duty of ordinary care for her own safety. a jury would the second exception to the minimal duty rule concerns private discover and correct any unreasonably hazardous conditions, or to warn others due to the vegetation. as stated above, if the crossing is ultra-hazardous, our it on a private way, and to impose upon each a duty of ordinary carp. the allowed bushes and weeds to grow up on its right-of-way adjacent to the (emphasis added) (citing whittle's adm'rs, 287 s.w. at 895)) . adjacent to the csx right-of-way and crossing, kerrin hester and charles issue of material fact," as to whether the road was public. steelvest, 807 to alter our well-established precedent defining the duty owed at private unnamed gravel road is unclear from the deeds' cryptic language . and even if whether csx breached its duty by failing to utilize all means to avoid the sharp curve about 300 feet north of the crossing, and a bluff that "obscures the appellants must prove that (1) that csx customarily signaled at this crossing; to do that and the traveler relied upon receiving such warning, the failure to does not commit us to the sanctification of ancient fallacy." then, quoting the due to the structure of appellants' brief, it does not appear that appellants photographs created a material issue of fact for a jury to resolve. lacked a contractual relationship between the parties). the parameters of tort at places where they have a right to be. but even where the danger posed by engineer, collided with a car driven by mary calhoun. as part of her morning that degree of immunity from tort liability? immediately prior to the crossing. additionally, on the sanitation company crossing, which obstructed the driver's view. utilizing the law of easements, we this case arises out of a non-fatal railroad accident at a crossing in geography of the railroad crossing, and away from the conduct of those using samuels, an employee of the bullitt county road department testified that the closer, he could see only 300 feet in that direction." id. the trial court then air, on foot, astride the back of a horse or a mule, or sitting on the wooden recognized the "undertaker's doctrine," which imposes liability for the negligent crossings] where there exist peculiar or extraordinary circumstances bullitt county,i where a csx train, operated by paul l. mcclintock, jr., the start sounding the whistle. in kentucky, a train must start sounding its bell or of transportation lists the bcs railroad crossing as private . tort law--and replacing it with a very general duty of care is dubious, at best. the purview of an appellate court reviewing a summaryjudgment order is to exit was the reverse. appellants assert several other arguments that are tangentially related to hazardous. however, the court of appeals utilized a slightly different ultra- 20 were the jury to find a breach of such duty, then, of course, issues of comparative train's approach to this crossing by proper signals. 9 the court of appeals also ruled on several evidentiary matters that are not before bullitt county sanitation (sanitation company), a privately owned company. 2 9300 shelbyville road, suite 215 iii. analysis concluded that this speculative argument was insufficient to withstand particular railroad crossing was public or private, and the corresponding duty approximately fifty-three miles per hour. as previously noted, the private crossings minimal duty rule is qualified when applying these principles to the case at bar, we conclude that the horn or whistle when approaching this crossing." id. we held that the case 18 calhoun also claimed at her deposition that she never had to pull in front of the remainder of the court of appeals' opinion. the sight distance is 263 feet. whether this crossing was as unusually only mary was involved in the accident; jesse, her husband, joined her in the based on a review of the record, we hold that there is a genuine issue of circuit court and affirmed by the court of appeals, in favor of appellees, csx company's side of the crossing. is for a jury, not a trial or appellate court, to decide. different from a private crossing, and it is reasonable to apply a different duty quisenberry involved a fatal accident where a train struck the traveler's bullitt circuit court no . 02-ci-01120 louisville gas and elec. co. v. roberson, 212 s.w.3d 107, 111 (ky. 2006). in customer. claywell is inapposite to the present case due to the absence of an system . 12 consequently, we succinctly discuss and dismiss the remainder of appellants' concepts . the three exceptions to the "no-duty rule" may breathe the air of lexington, ky 40504 a whistle board is a sign located prior to the crossing, informing the engineer to distinguishable," since the instant case pertained to a railroad crossing and found was not ultra-hazardous . finally, gaw was procedurally decided under thereafter. bullitt county maintains the paved section of the road . carroll appellees approaching and passing over public crossings, are very different from those if ever a doctrine was unsuited to present conditions, it is this one. the december morning; that it was travelling at a high speed, and accelerating as it law at private crossings are clearly delineated, and we thus decline to create a 2000). and here, the court of appeals exceeded its scope of review when it unsuited to present conditions." respectfully dissent and express my concern that, in this case, an unjustified owed to mary because: (1) the bcs crossing was private and a railroad christopher w. goode beside, the same land. based on appellants' concession, that mary calhoun never relied on a evan m. tager summary judgment, and found that was "it was obvious" that a vehicle could relying on a customary signal, travelers can reasonably presume that the from removing the trees; a claim based on a statement taken from hester's minton, c.j .; abramson, noble, and schroder, jj ., concur. venters, j., disagree as to whether the train's whistle was sounded prior to reaching the was properly submitted. id. at 411 . 3. pervasive or habitual use exception maintained by the county dangerous as the one described in quisenbernj-under the facts of this case- where a different duty was assumed; if the crossing is, or becomes, ultra- including railroad's personnel, and its property; for the railroad, a digty to sustained serious injuries and has no memory of the collision. years afterthe accident here. the extent that nature and human action altered the was private. no. 3:05cv-220-mo, 2008 wl 793655 (w.d. ky. march 24, 2008). universal duty of care doctrine to expose the archaic common law doctrine that the crossingg 3 so, her approach in the morning was from east to west and her application of the extrahazardous crossing rule ." we address these questions s.w.2d at 482. as stated above, in quisenberry, we approved the trial court's and -"end the reliance requirement" stated in maxwell. 16 we again decline . approached the crossing from: north or south . consequently, we do not know the crossing, whether by rail or by private road way. a more direct approach, material fact to negate the railroad's demand for summary judgment. yet, this minimal duty at private crossings is enhanced in three instances: whatever else did--or did not occur-the train clipped mary's car's manner. appellants assert that mcclintock's failure to sound the horn, furthermore, claywell was a dram shop liability case, which utilized the jurisprudence abounds with them . except for railroads, all property owners engineer violated their duties by failing to maintain the crossing allowing it to exception; and the pervasive use exception. we now consider the applicability duties from the general rule applicable at private crossings; i.e ., the three roberson, lg & e contracted with jefferson county to install and maintain hazardous; or where, by pervasive use, the character of a private crossing has use of the crossing by the public, then this use may impose the duty of lookout furthermore, we are not persuaded that csx's two photographs performance of a service undertaken for the protection of a third person. 1. the assumed duty exception may be established is in the manner provided by statute, or by its dedication to running parallel with csx's right-of-way. furthermore, at the time of the eventually crossed a single set of csx's north-south railroad tracks at the whittle's adm'rs, 287 s .w. at 895 . counsel for appellant: approach of a locomotive was a sight to behold. unlike the comparatively quiet and, in my view, a more just approach, is to recognize that every pri ate established and frequently used private rail crossing, a railroad company owes appeals found, as a matter of law, that this exception was not applicable. we railroad has no duty of lookout, or to warn (unless it knows that a person is in submission to the jury of the issue of whether, inter alia, 300 feet of sight line adopt a new framework that "everyone owes everyone else a duty to act for persons whose entry upon the property is foreseeable . see lee v. farmer's his vehicle for his own safety, and the safety of his passengers and others, that court noted, as did the court of appeals in this case, that the u.s. department land, and to either correct them or warn of their presence. see kentucky river a jury to decide whether the ultra-hazardous exception applies. "even though those days, and most likely had nowhere near the 2,396 private railroad material fact for trial as to whether the bcs crossing was ultra-hazardous due we recognize that gaw held that this same crossing was not ultra-hazardous as cunningham, j., joins. traffic on the approach to the crossing; and, that the train's engineer had railroad. rule . . . . we must reform common law doctrines that are unsound and 185 s .w. 140 (1916) ; stull's adm'x, 189 s.w. at 723-24 (stating that railroad some affirmative evidence showing that there is a genuine issue of material fact of csx and mcclintock. the court found that csx did not breach any duty calhoun's admission that it was possible to pull her car past the tree line and counsel for appellee: private crossing in a reasonably safe condition for persons whose presence on a tavern owner never owes a duty to a third person injured by an intoxicated appeals refused to adopt appellants' expert's opinions for the purposes of equivalent to the "no duty" common law rule in the railroad crossing paradigm. highway." louisville & n.r. co. v. whittle's adm`rs, 216 ky. 314, 287 s.w. 894, automobile, with its own engine running. instead, they were out in the open depicting the bcs crossing taken by csx's agent. the court quoted mary public road or street established either in the manner prescribed by statute or notice the approaching behemoth. kentucky was more sparsely populated in below. law" and urge this court to adopt a new rule based on the "universal doctrine for the foregoing reasons, we reverse the court of appeals' decision in the present case, the court of appeals concluded that the obstructive and warning." hunt's adm'r, 254 s.w.2d at 707. although we have not moreover, the kentucky transportation cabinet's listing of public roads deposition wherein he claimed, "i'm not allowed to cut it so somebody is required to and (3) this crossing was not ultrahazardous, was not pervasively used by the power lines is not from the ultra hazard of electrical shock, an electric power photograph's perspective is easily manipulated by the photographer. in cases melanie w. rughani louisville, ky 40202-3175 that principle does not require blind imitation of the past or adherence to a appellants now seek "a determination of whether the `no duty' private a. public/private crossing distinction. discretionary review to consider appellants' contentions and for, the reasons subject to "the no-duty rule," and that notion is antithetical to modern tort with this framework in mind, we turn to the present case to examine crossing. mcclintock and the train's conductor, ed harris, testified that the summary judgment. beside another's land, should not observe the same standards of care we mary and her husband, jesse,? initially filed suit against appellees, csx appellants motion and all doubts are to be resolved in his favor." steelvest, inc. v. made factual findings regarding the validity of some of appellants' evidence . undoubtedly take a close look at that. but, there was evidence that the train decided a definite number that qualifies as "habitual use," we have held that as detailed above, at private crossings, a railroad has a duty to exercise appellants claim that, "as a matter of first impression," kentucky law train's signal, we affirm the court ofappeals' holding that appellants, as a such cases reasonable care may require .that an alarm or signal be a return to this more reasonable standard of care would in no way relieve employed a couple dozen workers and, other than hester and burris, only an 277 .010, et. seq. therefore, we must determine as a critical threshold matter, appellants allege that mcclintock may have taken a combination of estate to make whatever repairs were necessary for the safe use of [the concede this point, stating "[t]echnically, the roadway was never incorporated crossing the sight distance is 263 feet) were "blatantly contradicted by the the last two centuries. in its place, appellants ask us to implement the exercise ordinary care in the operation of the train for the safety of persons accident, there was extensive vegetation growth along the sanitation property in a reasonably safe condition, and to exercise ordinary care to immediately before the crossing. 1999 k street, n.w. this very crossing. gaw, 2008 wl 793655, at n. 4 (finding roberson "easily determine whether there was "some affirmative evidence showing that there is juries 25.06 (4th ed. 1989). traction & terminal co., 172 ky. 650, 189 s .w. 721, 723 (1916) . as will be may be vegetation landscape during these years is unknown (csx did, however, concede csx transportation, inc., et al. d. other assertions insofar as it relates to the ultra-hazardous crossing exception and remand for evidence "must be viewed in a light most favorable to the party opposing the to access the sanitation company, a driver must turn off of preston highway crossings now existent in the state. in summary, when the rule was created defeat a properly supported motion, the respondent must "presen[t] at least appropriate for the private crossing in the case subjudice. dinsmore 8s shohl, llp which are required of them at private crossings." stull's adm'x v. kentucky give it is negligence." illinois central r. co. v. maxwell, 292 ky. 660, 167 s .w.2d david r. monohan crossings. the court of appeals in its reasoning, quoted from mary calhoun's appellants introduced expert testimony that twenty-two feet from the crossing of the danger. hundred and twenty-five, or one hundred and fifty persons cross daily. private-we next consider the duties our common law imposes on csx. railroad has a duty to warn those using the crossing. hester and burris maintained the road, we are unable to conclude that csx was a trial court may believe the party opposing the motion may not succeed at formal, some control on the part of the county authorities must be exercised." crossing is needed to properly consider whether it is public or private. in order the distinction between public and private railroad crossings is critical s the several reasons . importantly, the accident in gaw occurred in 2005; over three here however, the court of appeals held that the number of persons 14 appellants make a fleeting argument that csx was the defacto owner of the road further detailed below, our well-established common law imposes a minimal determine. public, and mary did not rely on the train blowing its horn so as to alter csx's after reviewing the evidence, the court of appeals placed dispositive implore this court to expand or create new duties applicable to railroads . as appellants then filed a notice of appeal. the court of appeals affirmed venters, j., dissenting: because the majority opinion reinvigorates private crossing in those days were not enclosed within the cab of a modern record," namely, the two csx photographs. consequently, the court of defined, and hence, whether the railroad had a duty to warn of the t~ain's this particular crossing was "ultra-hazardous," however that concep matter of law. crossings that are found to be ultra-hazardous. louisville & n. r. co. v. allegiance to the concept of stare decisis has led us to neglect our duty, as the otherwise. we find the comparison unpersuasive and consequently, decline the invitation surrounding a crossing and the facts are known to trainmen . in "any unnecessary injury" to the crossing, he may "enter upon the servient unnamed gravel road . this nameless gravel road traverses the railroad manner prescribed by statute. part standard, admitting that "mary calhoun had never encountered a train at "not liable for injuries to a traveler at [a private] crossing unless after discovery onto an unnamed paved road and proceed west. this paved road eventually 841, 843 (1943) (citing chesapeake 8a o. r. co. v. young's adm'x, 146 ky. 317, of these exceptions to the present case . when it assigned them dispositive weight over appellants' forensic mapping 895 (1926) . 11 we also noted that, "although the acceptance need not be this unnamed paved road, however, does not lead directly to the private and so, csx had no duty to clear the allegedly obstructive vegetation ; scansteel service center, inc., 807 s.w.2d 476, 480 (ky. 1991). finally, to framework" for restructuring a more fitting standard of care. our the intersection of a railroad and a public highway is fundamentally rural elec. co-op. corp., 245 s.w.3d 209, 212 (ky. app. 2007). likewise, injuring someone. what other non-governmental .entity in our society enjoys judgment. see e.g., commonwealth v. deloney, 20 s.w.3d 471, 473-474 (ky. discard our long-standing, clearly delineated private crossing precedents, and thus at private crossings, "a railway company owes no duty of lookout or to be published novo the lower courts' legal conclusions that csx was entitled to judgment as a c. three exceptions to the minimalduty rule crossing to be a public one the road or street on which it is situated must be a because "the duties required of persons who operate railroad trains, when in doing so, she traversed an unnamed, partially gravel road (the road), which 4 the public use and its acceptance by the proper authorities as a public see an oncoming train." cincinnati n. o. & t. p. ry. co. v. hare's adm'x, 297 although briefly detailed above, a. more thorough description of the (1943) (emphasis added) . furthermore, "the only way that a public highway should require csx's engineer, paul mcclintock, to an act in a prudent appropriately structured standard of care, those circumstances viewed in the headed home back over the tracks (heading east). at the same time, a csx affirming in part and reversing in part utilizing the bcs crossing on a daily basis was "well under the level required maintain in any way the safety of the private passway for travel." id. we extent of csr's duty. roadway a driveway to the garage. able to see the track for about 500 feet north of the crossing, but when getting at approximately 6:30 a.m. on december 12, 2001, a dark and foggy unsound and unsuited to present conditions. hazardous standard set forth in hare's adm'x, which required the crossing to cut it." given this single accusation, and in light of the evidence suggesting that that it is controlled by bullitt county under any form of public dedication. trial, it should not render a summary judgment if there is any issue of material tracts abutting the railroad right-of-way and crossing maintained the gravel reason to depart from maxwell. 19 if the bcs crossing is ultra-hazardous, the factual dispute regarding whether county paved the road up to the garage . he stated that he considers this paved washington, d.c . 20006-1101 finders; and neither are trial courts when ruling on motions for summary to inspect and maintain their lines in such condition as to prevent the escape reasonably to prevent foreseeable harm to the other." appellants are not exceptions to the minimal duty rule were inapplicable. seen and heard for great distances. trees and underbrush growing along the light most favorable to appellant, sufficiently establish a genuine issue of further proceedings consistent with this opinion, but otherwise we affirm the mary jane calhoun, et al. arguments. s .w.2d at 707 ; see also, chesapeake 8s o. ry. co. v. hunter's adm'r, 170 ky. 4, entitled to a judgment as a matter of law." cr 56 .03. furthermore, the iv. conclusion changed to a public one. appellants' forensic mapping expert's opinions (that twenty-two feet from the the final exception to the minimal duty imposed on railroads -involves crossing framework. furthermore, we note that a federal court likewise common law imposes a duty on the railroad to warn of its approach. 20 following discovery, the trial court granted summary judgment in favor see louisville & n.r. co. v. survant, 96 ky. 197, 27 s.w. 999, 10.01 (1894) ("a public approach . in doing so, we misdirect the focus of the inquiry toward the vegetation on the west side of the tracks (the bcs side) could qualify as ultra- weight on portions of mary calhoun's deposition along with two photos of gas therefrom. moore v. london gas co., 372 s.w.2d 270, 272 (ky. 1963). relating to drugs prescribed to mcclintock were too speculative to defeat private crossings pervasively used by the public . under this exception, "if the crossings. we are remanding this case so that ajury may determin rendered: january 20, 2011 appeals found the ultra-hazardous exception inapplicable to the bcs crossing louisville, ky 40222 by dedication, and if in the latter manner there must be an acceptance ." deitz' of care" doctrine as stated in claywell. grayson fraternal order of eagles, aerie the death of a minor, who was struck by a car after dusk, when one of the routine for three months prior to the accident, mary drove her sons to work at train, operated by mcclintock, was heading northbound, en route to louisville does not list this unnamed gravel road, nor is the road included in the listed company stills bears the duty of any property owner to exercise ordinary care see how a traveler could establish the custom prong-a prong requiringthe train to deposition where she thrice reiterated that she had "never heard a whistle." argument, as appellants concede that they "cannot prove or disprove what his crossing the tracks, and the traditional duty of any landowner to maintain its without more information, however, bullitt county's ownership of this is by this admission, mary calhoun also would have no idea what csx's custom is, side of the crossing, there is a tree line stretching north into the horizon, customarily, signals at the particular private crossing, thereby inducing the bubalo, hiestand & rotman, plc be "so exceptionally dangerous" that "one exercising ordinary care . . . can not to hester's son operated the sanitation company which lay on the hester tract. warning mary calhoun of the train's approach, violated csx's operating rules. invitation to a traveler to proceed." maxwell, 167 s.w.2d at 843. we see no as a matter of law. calhoun, contend that summaryjudgment was not appropriate. we accepted by three exceptions : the assumed duty exception; the ultra-hazardous crossing maintaining electric transmission lines where exposure to the dangers of persons at private crossings. the sanitation company, hester, and burris are not longer parties. as both approached the crossing, mcclintock observed mary's car crossing poses some degree of danger for both the railroad and thoso crossing for the exception to apply." according to the record, the sanitation company leads to the bullitt county highway garage, ending almost immediately and (2) that mary calhoun relied on csx always signaling at that crossing. duty for railroad companies at private crossings. the general assembly, on the 13 our conclusion that this railroad crossing was private is bolstered by gaw v. suggests that kerrin ester and charles burris, the landowners of the two burris .8 they asserted negligence, alleging, inter alia, that csx and its circumstances are such that require a signal is for the jury to hilan v. hays, 673 s.w .2d 713, 717 (ky. 1984), "the doctrine of stare decisis whistle at least fifty rods before a public crossing. krs 277.190 .

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