STATE OF MISSOURI ex rel. AMBER HALE f/k/a AMBER KOESTER, Relator,
THE HONORABLE MICHAEL O. HENDRICKSON, THIRTIETH JUDICIAL CIRCUIT, WEBSTER COUNTY, MISSOURI, Respondent.
PROCEEDING IN MANDAMUS
PRELIMINARY WRIT OF MANDAMUS MADE PERMANENT
Steffen Rahmeyer, P.J.
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.
Fifth Amended Petition proposed to:
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
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.
new allegations of fact in paragraphs 18, 19 and 20, which
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.
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
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.
new allegations of fact in paragraphs 32 and 34 of the