C.A. Pares Claims Against PUC in Rail Crossing Accident

Wednesday, January 27, 2010

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C.A. Pares Claims Against PUC in Rail Crossing Accident

By KENNETH OFGANG, Staff Writer

The California Public Utilities Commission’s regulatory authority over a railroad crossing does not render it liable for alleged negligence in failing to prevent an accident at the location, the Court of Appeal for this district ruled yesterday.

The ruling by Div. Four bars claims by Julissa Millan that the PUC’s “control” of the Wilmington Ave. crossing in Carson, and its failure to install a gate there, render it liable for the December 2006 truck-train collision that killed Millan’s husband, Union Pacific Railroad Company employee Jeremy Salinas.

The decision allows Millan to go forward with her claim that failure to install the gate violated a mandatory duty on the part of the commission. She is also suing the railroad, the trucking company, the City of Carson, CalTrans, and others.

The accident occurred when a truck driven by Wilson Tubalado for Associated Consolidators Express collided with a train, pinning Salinas—who was operating the train by remote control while riding in the outside portion of a railcar—between the truck and the railcar. He died days later.

Millan’s complaint asserted that the PUC is liable under Government Code Secs. 830(c) and 835, which make public entities generally liable for dangerous conditions on property they own or control. The complaint also alleged liability for breach of a mandatory duty under Sec. 815.6.

The railroad crossing constituted a dangerous condition, the complaint alleged, because the PUC failed to implement a 1989 recommendation, resulting from a multi-agency field review, that a gate be installed. The PUC placed the proposal on a priority list of projects for which federal funding would be sought, but the project was not funded and was removed from the list six years later.

The commission argued in its motion for summary judgment that it did not own or control the crossing. Los Angeles Superior Court Judge William Barry disagreed, saying the commission arguably could have prevented the accident by either installing the gate or closing the intersection to vehicular traffic entirely.

Justice Thomas Willhite, however, writing for the Court of Appeal, said the PUC did not control the crossing as a matter of law.

Regulatory authority does not constitute control, the justice said, citing Chatman v. Alameda County Flood Control etc. Dist. (1986) 183 Cal.App.3d 424, in which the court held that a flood control district was not responsible for the escape of water from a culvert located under the landfill on which the plaintiff’s home was built.

The court said in that case that while the district was responsible for inspecting the culvert and approving work done on it, this did not amount to control, as might be the case if the district had assumed maintenance responsibility itself.

In a similar case, Aaitui v. Grande Properties (1994) 29 Cal.App.4th 1369, Willhite noted, this district’s Div. One held that a city’s power to inspect and regulate private swimming pools did not subject it to liability for a death by drowning in a privately owned pool at an apartment complex.

Willhite explained:

“Reading Chatman and Aaitui together, we conclude that the PUC’s regulatory authority over the crossing does not establish control of that property within the meaning of section 830. To begin, the PUC does not own the property and holds no interest in it. It is Union Pacific’s responsibility to maintain the flashing signals at the crossing. Further, pursuant to the PUC’s General Order 72-B, Union Pacific has the responsibility to maintain the crossing and an area two feet outside the tracks and the City of Carson has the responsibility ‘to maintain the approaches and those portions of the crossing not included under [the] railroad[’s] responsibility.’ The PUC has no authority to correct any defects (safety or otherwise) associated with the crossing. The PUC can only order others to take prophylactic measures. That General Order 75-D provides that the PUC must give permission to any entity which seeks to change the warning devices at a railroad crossing does not equate with PUC control of the property.”

The justice distinguished Low v. City of Sacramento (1970) 7 Cal.App.3d 826, which the trial judge relied on. He explained that in Low, a slip-and-fall case, a county was held to be potentially liable for a slip-and-fall accident that took place on land that the county owned but on which it had granted the city an easement.

In that case, Willhite noted, the county not only owned the land, but actively maintained control by doing maintenance work on it. “Here, in contrast, no evidence was offered that the PUC ever actively maintained the railroad crossing through any form of maintenance or repair,” the justice said.

The case is Public Utilities Commission v. Superior Court (Millan), B217634.