Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State ex rel. Hale v. Hendrickson

Court of Appeals of Missouri, Southern District

July 5, 2018

STATE OF MISSOURI ex rel. AMBER HALE f/k/a AMBER KOESTER, Relator,
v.
THE HONORABLE MICHAEL O. HENDRICKSON, THIRTIETH JUDICIAL CIRCUIT, WEBSTER COUNTY, MISSOURI, Respondent.

         ORIGINAL PROCEEDING IN MANDAMUS

          PRELIMINARY WRIT OF MANDAMUS MADE PERMANENT

          Nancy Steffen Rahmeyer, P.J.

         Amber Hale ("Plaintiff) was injured when the vehicle she was driving collided with a train owned and operated by BNSF Railway Company ("Defendant" or "BNSF") at a railroad crossing in Webster County, in March 2008. Plaintiff filed suit in May 2009. Judge John W. Sims initially was assigned to the case and granted summary judgment in favor of Defendant and dismissed Plaintiff's suit. Plaintiff appealed and we reversed and remanded. Hale v. Wait, 364 S.W.3d 720 (Mo.App. S.D. 2012). Following the retirement of Judge Sims, the case was assigned to Judge Michel O. Hendrickson in January 2013. The case subsequently was tried to a jury in February 2016, on Plaintiff's Fourth Amended Petition, with the jury returning a verdict for Defendant. Plaintiff again appealed, and we reversed and remanded based on instructional error. Hale v. Burlington Northern & Santa Fe Railway Co., 524 S.W.3d 603 (Mo. App. S.D. 2017). Beginning on the day after our mandate issued, Plaintiff unsuccessfully sought a change of judge first through a motion that the trial court denied and then through writs of prohibition first before us and subsequently before our Supreme Court that were denied. On October 2, 2017, the day that the Supreme Court denied Plaintiff's writ, Plaintiff filed a motion to amend her Fourth Amended Petition and submitted a proposed Fifth Amended Petition.

         The Fifth Amended Petition proposed to:

         1. Reassert facts relating to (a) the operation of the train, and the physical characteristics of the railroad crossing and track, at the time of the collision, and (b) specific negligent actions or inactions, that initially were asserted in Plaintiff's original petition but subsequently deleted from amendments of the petition with or before the Fourth Amended Petition.

         2. Add a new allegation of fact in paragraph 14, which read: "On March 23, 2008, the presence of trees, brush and buildings between South Iron Mountain Road and the railroad track obscured the vision of those motorists attempting to look east and cross the track." This allegation was based on evidence introduced at trial, and that had been available to Plaintiff since shortly after the collision.

         3. Add new allegations of fact in paragraphs 18, 19 and 20, which read:

18. The train operated by [two named BNSF employees] on or about March 28 [sic], 2008 was carrying hazardous materials, including but not necessarily limited to Potassium Hydroxide and Sodium Hydroxide.
19. In certain circumstances, Potassium Hydroxide and/or Sodium Hydroxide can form explosive Hydrogen Gas.
20. Neither [of BNSF's employees] saw Plaintiff Hale's motor vehicle prior to the collision.

Paragraph 18 was based on documents Defendant produced in discovery; paragraph 19 was based on common knowledge; and paragraph 20 was based on testimony at trial, and also was discernible from pretrial depositions, of BNSF's two employees who were operating the train.

         4. Add a new allegation of fact in paragraph 22, which read: "Plaintiff Hale did not see or hear Defendant BNSF's train or any warning signals, lights or sounds prior to the collision."

         5. Reassert a request for punitive damages that initially was asserted in Plaintiff's original petition but subsequently deleted from amendments of the petition with or before the Fourth Amended Petition.

         6. Add new allegations of fact in paragraphs 32 and 34 of the request ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.