thank you everyone for your sense please be seated the final case on calendar for argument today is seeing versus national railroad passenger corporation good morning your honour's council may please the court morning my name is david clay check i represent the appellate in this matter and i would request two minutes time for rebuttal all right this case concerns an amtrak railway a great crossing at the very way in fremont california my clients are the that the case the issues before the court concerned the issues of summary judgment that the court granted this is a negligence claim against the defendant's  negligence was was argued in the lower court and the lower court made a series of errors we believe the salient errors were all related to summary judgment and can be reviewed reviewed  are few issues that are reviewed for abuse of discretion but those are periphery issues and we can discuss those later the st and in my mind the most important issue before this court is the lower courts finding relating to the california public utilities commission as it relates to their authority to dictate i guess is the defendants are saying railroad grade crossings so isn't the argument that the urban crossings require pedestrian gates more properly race before the p c at self no your honor the p u c specifically gives authority and directs the railroads for the responsibilities of maintaining and updating had there been any problems at that area is that what is the record shall i i have my review their records that they hadn't had any problems there the record is devoid in regard to that either way well i mean that would help and then apparently i mean the tragedy of this i mean it's a truly tragic situation and and both for your clients and also for someone that would have to see this  and there's a school nearby and there's been no problems with the nearby school or anything along those lines so your honor there's no evidence either way and it's my understanding that there had been problems and this this but really how can we if there's no evidence we have to go by evidence so how can we say that there are problems well there's no there's no evidence in the record of problems or no problems but to have something that's more than what the public utility commission requires you have to show that there's something at this intersection that would have required more no your honor the issue of whether there is a duty is well settled in california under h and sixty nine california supreme court ruling which was an issue very much like this in hoke route ninety nine crossed a railroad crossing and in hoke the individual truck driver who was also dissident was in fact hard of hearing so we've got some similarities there and in hoke the argument was you didn't install a warning a visible warning that indicated the train was coming you rely only on the horns but this individual could not hear so it's a question of for the jury of whether they could have done more and the whole court specifically stated that the c p you see is a minimum standards and that it is for the jury to determine if they can do more and the c p and the whole court specifically discussed general order seventy five dollars the suit which is at issue in this case p use own general orders yes or else going to say so what in your view what was the duty in this case the duty in this case was to install a pedestrian gate this is in fremont california were what impose that duty to install but there are several things your honor number one the common law duty in hoke and in rome oh that's good law today number two general order number eighty eight which is that you have to show that this intersects there has to be some evidence  the record that this intersection is more dangerous than other road intersections and the state that's not and there are records to for any problems at this particular intersection or whatever that is not the standard your honor the standard the development in this area the california manual on uniform traffic control devices which begins in the record at ninety nine and if you go to see a general order eighty eight is general order eighty eight says it's the responsibility of the railroad to determine the appropriateness of the crossings but that doesn't this so you think that creates a duty that creates a duty according to hoke is that create a duty to install pedestrian gates in this case it creates a duty to install a gesture that extreme gates if you look at the record i'm page one hundred and seventeen the california manual on uniform traffic control devices has already determined that pedestrian gates minimum standard that they did not meet that the c p u a c has said the desk gates are put totally appropriate general order a d h saying that it's appropriate doesn't mean that it's mandated well in hogue it's a question for the jury and that's that's the law in the state of california i want to clarify when you refer to the railroad yes you're on whether you're referring to amtrak union pacific or both because there's evidence in the record that amtrak why while they do some patrolling of the tracks doesn't have any control over the intersection your honor that that's another issue with regard to when i say railroad i am referring to both however we have two entities we have union pacific which has been in mid it by the appellate used to be to own the railroad tracks so there's no issue as to ownership right i think it's clear that union  the obligations for that the safety that's on the ground or that's not on the train let's say they own the railroad train on the tracks they own the gates they own the flashing lights if there were a pedestrian gate they would own that and general order eighty eight dollars goes to that that says it's the railroads responsibility to put in these gates but how does amtrak have liability for the gate when they don't control or the right away well control is different from ownership and it's custody control and ownership which is california law for premises liability and in our view there's evidence for the jury to hear whether amtrak controlled the premises sufficient to give give way to liability so in this case amtrak ran several trains a day this is the capital corridor  train this is an extremely busy neighborhood in fremont california which with a lot of pedestrians and they ran their trains up to eighty miles an hour in this area there he seems to be some and this is a delicate question but there seems to be some evidence in the record fat the appellant may have just laid down on the tracks and there was a witness that said that just so what do we do with that well you're on a bed if someone goes and puts himself intentionally in front of the train and there does seem to be some evidence of that although it's just it it's there how would any of dismayed have made a difference well that wasn't an issue brought up by the appellate as in this case however i will say now when mike really wants to say that but it does seem to be there was a witness it sad that happened in a matter of seconds mr adek the engineer said this happened in a matter of seconds imagine a blind person trying to time his walk so that he could walk exactly on the tracks and get hit by the train traveling at sixty nine miles an hour at the exact correct moment it is inconceivable that he could do this there's no evidence that he did it every day and on this day when it happened and they said that he  on the tracks and put himself in front of the tracks your honor the horn was not sounding as the train was approaching that intersection according to mr greenleaf mr hammer mr singh was walking and he hears nothing he's legally blind all of a yep windows rolled up or down you have music playing or not yet you know the focus on something else so i don't know that that's necessarily inference that because he didn't hear it that the horn wasn't lonely well i believe that is an that this court should make in a summary judgment motion all of these are issues of fact that the jury can make the determination on but for summary judgment the court should be looking at the facts in the light most favorable to the pla this not to post well your honor we had taken their recorded statements and not good enough necessary in the court didn't think it was good enough because well under oath at that point it's not under oath but it would have been admissible if they had  either allow us to take the depositions we've got one we've got one well but all of us have done summary judgment send some are judgments are not a trial that it's everything is submitted together and if you have deposition testimony or whatever you have but you don't call witnesses in a summary judgment motion i see my time is up your honor i would say we do have the declaration of mr greenlee and i if there's no other questions i would like to reserve the rest of my time when you come back i'd like to talk with you about the facts of hall because it appears that there was a problem in there that was being that the court was concerned with as opposed to this case where there is no record of a problem very good or i'm ok think you presented in causation and the judge among other things did conclude that there was insufficient evidence to demonstrate causation of course in summary judgment what that defendants are allowed to do is say to the plaintiffs you can't show an element of your proof  and in fact i don't think they ever specifically addressed what was sort of the elephant in the room because you're quite we're quite right nobody really want to talk about the implications of their pain no no  make a bit of difference and the testimony was among other things that there was a testimony from the engineer who said that he saw the man slowly approaching turned ninety degrees and crouched down just before the accident happened we appropriately to response i guess all all we know to say is that it crossings you try to have multiple ways of giving warnings to people this is a gentleman who not only went there daily went there twice a day and i don't think we know for how long but we know he lived in that area since two thousand and ten so it may have been five years of that i guess why doesn't create a travel and shift someone said i didn't hear a he said he said i didn't hear a horn or i don't recall hearing a horn and the question is whether that's enough by itself the judge found that that's not enough we submit that's not enough why because you have not just the testimony of somebody else ok if the engineer testifies to having every no blown the thing and the conductor also testifies to having blown the horn that's that's good i'd like to say that maybe that's enough by itself but i don't have to because we have the event data recorder that's why it is there and that event ticket data recorder shows is that actually the horn taken together with the testimony of the engineer shows that in fact a horn was started to say hound eleven seconds before which is exactly where the whistle post is where you're supposed to start yeah and i think from the recording you can't tell about the shark once and so if you don't do everything exactly like it sets out is that negligence per se or what's the story there what what the what the evidence shows is that they went in and right after the incident they went and did a functionality test to show the police and the functionality test was consistent with what we say happened and that r n at st i couldn't figure out where the heck it was but one is supposed to be for the bell and one is supposed to be for the horn in fact consistently with the easier show in this case we're starting just about eleven seconds before you get to the to the  intersection of the bell is shown as a positive consistently the horn doesn't show anything and so what what was explained to people was that's this your that's the way it works but what happens is once you press or pull lever i'm not sure which which was in this case to in order to activate the horn it automatically activates the bell and only the bell shows up for a period of time until the bell is deactivated so you don't and you did that in the checkout activate the bell you activate the horn and we say for the experts who had offered admissible testimony that yeah when you pull little horn all that happens is a bell starts to show up and that bell won't stop showing up until it is separately deactivated yes yourself why in the world with this gentleman be only activating the bales it doesn't make any sense what makes complete sense is and it's consistent with his testimony and it's not important it's very important to the expert looked at the engineer's testimony because after all sometimes there just a minute can be inconsistent with what shows up in the car and you've got a problem in this case it was entirely consistent with his testimony as to when he started with the horns and it can't be surprising that somebody was minding his own business in a car she didn't or section thinking it's just another day just like  witnessing a horrible terrible tragedy so would your argument that in light of all of this evidence including the e d r in the consistent so let me briefly touch on the whole business of jurisdiction over you pity or whether the p u c has exclusive jurisdiction what we have skewed to do is to read those general orders and i think  its various forms when you look at eighty eight in both of its two forms you will see that the they clearly say in the end the p u c we're going to approve this or we're not going to  provide your not going to be able to use it until until we approve it and just as an aside it's not on surprising that they it's that way because every crossing is different and what you get out of the my cap is you get basically a tool box which tells you variety of protections if you knew and then they all work but it depends on the crossing and the few you see or change the authority clearly to say in the end this is the the particular set of tools that you're going to use at this crossing so what do we make of a case that says that the public utility commission creates the minimum standard oh i say we're not troubled by it in this particular in this particular instance we don't think that implies that that that the railroad might have an obligation to saying there could you would have no duty that the p c as we we wouldn't have we wouldn't have a duty if if we were able to show that as of the the form and then somebody goes there and says well wait a minute you actually didn't have that particular device or anything but this record were different and there were lots and the railroad and amtrak row at that they were aware  a lot of instances of problems on wood wouldn't you have to call that to the attention of the p c or something i think i don't know whether there's  regulation that says you have to call to attention what we do know is that the p u c is frequently involved sometimes it's to a sponsor for no reason sometimes it is persuasively because there is an accident that  does this record have no there's nothing that would show the duty this event i mean i think you just call him and i think you some questions earlier of my my calling on that issue there's no indication that there was ever any problem with the pedestrian of the crossing yours or any indication that any point in time that p you see or anybody anybody because because frankly just about anybody can file a petition with  wasn't anything there and counsel tried to file an amended judgment after that or what what what how from your perspective what do we do about that  think that they had they had the opportunity we raised the issue of damages in support of summary judgment in up position they didn't they didn't say a thing we did put in a record that shows that two of the children or adults children her outside the country the rd adult one actually supported his father and there was no evidence whatsoever about the mother and i think the judge quite properly out of the circumstances said you know what you're out is clearly no evidence of cuny or damage obviously because there's a wife here will allow her so when a case goes forward if there's any case at all we don't allow her to try to cover noneconomic damages easily calculate does that prevent you from and a trial going into the issue of non economic damages just as a matter of interest in you know there are actually some case there and it does tend to say that if you intend to go to the jury and ask for a specific amount then you have to put something in the initial disclosures but some of the cases say that if you don't have that ok we'll still allow you to  of additional warning devices or any changes in the existing warning devices at the crossing the railroad shall be responsible for that's what the c p u a c general order radiates says the c p u c is put the responsibility on the railroad it is not the u sees responsibility go from grade crossing to grade crossing and say this is fine this is fine this is fine as for the railroad who is operating traffic like triggers that up and that's the that's the duty part of it and that's why i ask you to look at ho because there are particular circumstances in whole that triggered the responsibility to put additional sickness there because there was a problem with seen the particular crossing location where the accident occurred there were some signal lights there but not enough signal lights and there had been a demonstrated problem we don't have that in this case the demonstrated problem we have here is we don't have a pedestrian crossing but the demonstrated problem in hall was they even the managers of the location were saying that it was there was a blind spot your honor drivers could not see the north easterly location or whatever location was was a blind spot that was there for what that is the problem that was known that the railroad and that's what was constituted the duty because there was a problem there was a duty to correct a known problem and we don't have that here your honor if i if i may be the it wasn't a known problem there was evidence before the court that they could only see ninety one facts that's problem that was not a problem that was determined to be known by the railroad that was a problem that was demonstrated to the jury the juror actually the jurors actually when out to the railroad crossing and looked at the railroad crossing the railroad also argued in that case that the the all the other bells and whistles the horns and everything from the railroad should have warned this individual the whole court said it is well settled that such statutory regulations and they examine general order seventy five dollars such statutory regulations constitute only the minimum measure of care required by the railroad and is usually a matter for the jury to determine whether something more than the minimum required poll there was testimony from the defendant's assistant signal supervisor and from its principal assistant signal engine near that the proximity of pathway ninety nine to the railroad track your honor the last point i would like to make you are correct on the hogan i apologize but the last point i would like to make is to look at the data and these are data may be consistent with the horn being sounded but it is not supportive of the horn being sounded there's no e r dating relating to the horn the data only shows whether the either the home horn or the bell was sounded once either the horn or the bell is sounded than the bell