Facts

Michaela Smith was a Brand Partner for Vemma Nutrition Co., a multi-level direct marketing company that sells health and energy drinks. On Aug. 18, 2013, she attended a Vemma training and sales meeting at the home of another Vemma Brand Partner. She left the meeting in the early morning hours of the following day, with four passengers whom Smith was recruiting to be Vemma Brand Partners.

Smith drove over a private, ungated, railroad crossing south of Fresno, and was hit by a freight train. Four died, including Smith, and the survivor suffered a traumatic brain injury and orthopedic injuries.

Three wrongful death cases went to trial. Three of the wrongful death claims went to trial against Union Pacific Railroad Co. and Zim Industries. The other claims settled prior to trial.

PLAINTIFFS' CONTENTIONS:
The decedent driver's car was struck by one of Union Pacific Railroad Company's trains at an unguarded private railroad crossing on the private road leading to and from a residence. The roadway to the east of the railroad crossing is a dirt, unimproved roadway owned by Zim Industries. The railroad crossing is the main entrance to the property owned by Zim Industries. Zim Industries is the primary user of the railroad crossing and generates most of the truck traffic, by its own employees and by deliveries from outside vendors and trucking companies.

Stop signs were posted on the northeast and southwest corners of the intersection of Jefferson Ave. and the train track. Posted below the stop signs were signs that read, "Private railroad crossing. No Trespassing. Right to pass by permission, subject to control of owner. Section 1008 civil code." Public Utilities General Order 75-D sets that posting this private railroad crossing sign and a stop sign is the minimum requirement for a private crossing. Public Utilities General Order 75-D states that at all approaches to private at-grade crossings there shall be installed either a stop sign or an automatic warning device. The east side of the tracks was asphalt until it transitioned into a dirt driveway. The word "STOP" was painted in white on the asphalt on both the west and east sides of the railroad crossing, just before the stop signs. The word "STOP" was not painted with retroflective paint. There were no stop limit lines painted on the asphalt. There were no active warning devices at the crossing, including crossing arms or lighting.

The phrase "stop and look" had previously been painted on the asphalt, approximately five feet from the crossing. When the asphalt was redone, Zim Industries' asphalt contractor re-painted the word "STOP" on both sides of the crossing, but there were no discussion about painting a limit line. Public Utilities General Order 75-D required that the railroad crossing be authorized by a private agreement between Union Pacific Railroad Company and Zim Industries to evaluate conditions present at the crossing to make determinations and recommendations concerning safety needs at the crossing. There was no evidence that Union Pacific Railroad Company or Zim Industries ever entered into an agreement regarding the crossing. There was no evidence that Union Pacific Railroad Company ever conducted or participated in a diagnostic review or engineering study of the crossing.

Decedent driver, Michaela Smith had attended a training and sales meeting for Vemma Nutrition Co. on Aug. 18, 2013, and had left the meeting in the early morning hours of Aug. 19, with four passengers whom Smith was recruiting to be Vemma Brand Partners. Plaintiffs contended that Vemma Nutrition Co. was vicarious liable for any negligence of its agent, Michaela Smith. Plaintiffs also contended that Union Pacific Railroad Company was negligent because it failed to use reasonable care in the design and maintenance of the crossing, including the signal warnings and protective devices at the crossing. The configuration of the crossing made it inherently dangerous. The included approach angle between the roadway and the railroad is approximately 48 degrees, which means that drivers approaching the crossing from the east, as was Smith, approach the crossing at an angle, which places an oncoming train at an angle behind the driver's shoulder. Within approximately 30 feet of the crossing, the asphalt approach surface abruptly changes angle in an apparent attempt to straighten out the final approach. Golden State Blvd. is close enough to the crossing to confuse the driver about where to stop and how to negotiate the crossing. There was a substantial change in roadway elevation that had a profound effect on visibility of the crossing itself. There was also no lighting at the crossing. This, combined with fixed lighting at facilities along Golden State Boulevard to the south of the crossing makes it difficult for a motorist to observe an oncoming train.
Prior to the accident, employees of Union Pacific Railroad Company reported to the railroad that drivers were not stopping at the stop signs. The former railroad employee who testified at trial felt this was one of the most dangerous crossings in the area. All of the other crossing along Golden State Boulevard are public crossings and have active warning devices installed, including lights and gates, and crossbuck signs, advance working signs, and stop signs at Golden State Blvd.

The video recorder from the locomotive showed that Smith's car was traveling along Jefferson at approximately 18 to 20 mph (although the defense argued that it was traveling at an average speed of 54 mph based on testimony from Robert Snook, an accident reconstruction expert). The video also showed that she applied her brakes approximately 2.4 seconds before impact. Smith's response indicated that she was alert and attentive as she approached the railroad crossing, and her response to the situation was as timely as can be expected given the poor design, poor identification, and poor visibility of the crossing. It appeared that Smith was attempting to stop, but she did not know where to stop.

DEFENDANT'S CONTENTIONS:
Defendant UPRR contended that its train operation, signage, and crossing configuration followed all applicable rules, complied with the law, and were not negligent. Defendant Zim Industries contended that the work it had done at the crossing improved the crossing, and the work was not negligent and was not a substantial factor in the cause of the collision. Both defendants contended the sole cause of the collision was the driver's failure to stop for the posted "Stop" sign at the crossing.

Damages

Plaintiffs claimed $29 million in damages. According to plaintiff, at the time of trial against Union Pacific Railroad Co., Sandra Gonzalez argued for $10,000,000 for the death of her son, Sarah Vega argued for $10,000,000 for the death of her daughter, and Deborah Smith and Stephen Smith argued for $9,000,000 for the death of their daughter. Plaintiffs entered into a "high/low" agreement with Zim Industries for $30,000/$200,000. Union Pacific Railroad Company served CCP 998 Offers to Sandra Gonzalez and Raymond Fernandez for the death of their son for $100,000, Sarah Vega and Carlos Velasquez for the death of their daughter for $100,000, and Deborah Smith and Stephen Smith for the death of their daughter for $50,000. Sandra Gonzalez and Sarah Vega each served separate CCP 998 Offers to Union Pacific Railroad Company for the death of their children for $1,500,000.

Result

The jury returned a verdict for the defense, that the UPRR and Zim Industries were not negligent, and that Michaela Smith was 100 percent at fault for the collision. Pursuant to their "high/low" agreements, plaintiffs resolved their claims with Zim Industries after trial for $30,000 each. Prior to trial, Sandra Gonzalez and Sarah Vega settled their wrongful death claims against Vemma for $3,100,000. Raymond Fernandez settled his wrongful death claim against Vemma for $200,000, Zim Industries for $15,000 and Union Pacific for $5,000. Carlos Velasquez settled his wrongful death claim against Vemma for $200,000, Zim Industries for $15,000, and for a waiver of costs with Union Pacific. Deborah Smith and Stephen Smith settled their wrongful death claim against Vemma for $100,000. Teresa Alonzo and David Alonzo, Sr. settled their wrongful death claim against Vemma for $2,200,000, Zim Industries for $30,000 and Union Pacific for $100,000. Alexandra Martinez settled her personal injury claim against Vemma for $400,000, Zim Industries for $10,001, and Union Pacific for $100,000.

Other Information

Plaintiffs have filed a Motion for New Trial regarding the claims against Union Pacific. Following the conclusion of the trial, Union Pacific Railroad Co. indicated that it had begun the process of closing the crossing. FILING DATE: Jan. 14, 2014.

Deliberation

two days

Poll

Negligence: UPRR (11-1), Zim Industries Inc. (12-0)

Length

15 days