* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. 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 ofTransportation 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 summaryjudgment and dismissed United States Court of Appeals

Fifth Circuit 

### F I L E D May 18, 2009 Charles R. Fulbruge III ClerkNo. 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 88from 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 L A
. R EV
. STATE
. A NN . § 9:2800, which allows a public entity to be held liable for a dangerous thing within its care so long as the publicentity has “actual or constructive notice of the particular vice or defect which caused the damage.” L A
. R EV
. STATE
. A NN . § 9:2800(C) (2005). In order todemonstrate that DOTD had notice ofthe dangerous nature of the intersection, Appellants sought to introduce evidence ofnine 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 F ED
. R. E VID
. 403 for potentially causing unfair prejudice. Appellants presented noother 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. Thedistrict court excluded evidence ofthe nine prior accidents under F ED
. R. E VID
. 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 abuseofdiscretion. Baker v. Canadian Nat’l/Ill. Cent. R.R ., 536 F.3d 357, 366 (5th Cir. 2008). T he 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 theNo. 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 that turned south on Highway 88just 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 ofthe alleged dangerousness ofthe crossing. Therefore we affirm the summary judgment in favor of DOTD. AFFIRMED.