* 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.

REVISED May 19, 2009

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-30699

LESLEY HARROWER; DAVID HARROWER; MICHAEL HARROWER

Plaintiffs - Appellants

v.

STATE OF LOUISIANA on behalf of Louisiana Department of

Transportation

Defendant - Appellee

Appeal from the United States District Court 

for the Western District of Louisiana

USDC 6:04-CV-00305

Before REAVLEY, DAVIS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Lesley Harrower, David Harrower, and Michael Harrower (“Appellants”)

sued the Louisiana Department of Transportation and Development (“DOTD”),

among others, for the death of Philip Harrower, who was struck by a train at a

railroad crossing. After excluding evidence of earlier accidents at the crossing,

the district court granted DOTD’s motion for summary judgment and dismissed

United States Court of Appeals

Fifth Circuit

F I L E D

May 18, 2009

Charles R. Fulbruge III

Clerk
No. 08-30699

2

plaintiffs’ case. Appellants appeal that judgment and complain of the district

court’s ruling excluding the evidence of prior accidents. We affirm.

I.

Philip Harrower was killed when a train collided with his car at a railroad

crossing on Louisiana Highway 88. Harrower had made a left-hand turn onto

Highway 88 from Louisiana Highway 182, and was struck at the crossing which

is located close to the intersection of the two roads. His wife and children sued

DOTD under LA. REV. STATE. ANN. § 9:2800, which allows a public entity to be

held liable for a dangerous thing within its care so long as the public entity has

“actual or constructive notice of the particular vice or defect which caused the

damage.” LA. REV. STATE. ANN. § 9:2800(C) (2005). 

In order to demonstrate that DOTD had notice of the dangerous nature of

the intersection, Appellants soughtto introduce evidence of nine prior accidents

that had occurred at the same crossing. The district court determined that the

accidents were so dissimilar from Harrower’s accident that they should be

excluded under FED. R. EVID. 403 for potentially causing unfair prejudice.

Appellants presented no other evidence demonstrating that DOTD had notice of

any danger inherent in the crossing, and the district court granted summary

judgment in favor of DOTD. 

II.

The district court excluded evidence ofthe nine prior accidents under FED.

R. EVID. 403 on grounds that the accidents were so dissimilar or so remote in

time that the probative value of the evidence was outweighed by the danger of

unfair prejudice. We review a district court’s ruling on admissions of evidence

for an abuse of discretion. Baker v. Canadian Nat’l/Ill. Cent. R.R., 536 F.3d 357,

366 (5th Cir. 2008). 

The first of the nine accidents occurred in 1975, and the district court

determined that this 25-year-old accident was so remote in time that the
No. 08-30699

3

probative value of the evidence was extremely limited. The exclusion of the

evidence was not an abuse of discretion. Seven of the remaining accidents

involved vehicles approaching the railroad crossing from the south on Highway

88, not from the north as Harrower did. Therefore, excluding them because of

their dissimilarity from Harrower’s accident was not an abuse of discretion.

Only one ofthe accidents involved a vehicle thatturned south on Highway

88 just before reaching the tracks, which was the route Harrower took. In that

accident, a tractor pulling two sugarcane carts turned onto Highway 88 from

Highway 182, as Harrower did. A train struck the carts as they crossed the

tracks. The driver of the tractor stated that the crossing lights were not

functioning at the time. Appellants here have stipulated that the lights were

working at the time of the Harrower accident. The police investigated the

accident, generated a police report, and ticketed the driver. The record does not

show that any claim was made against DOTD or any other state entity.

Accordingly, the exclusion of evidence of this accident, allegedly caused by

malfunctioning signals, was not an abuse of discretion.

III.

With the evidence of the nine accidents excluded, Appellants have no

evidence to demonstrate that the DOTD had actual or constructive knowledge

of the alleged dangerousness of the crossing. Therefore we affirm the summary

judgment in favor of DOTD.

AFFIRMED.