RENDERED: JUNE 27, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0654-MR
RUSSELL ROBERTS AND ANGIE ROBERTS APPELLANTS
APPEAL FROM PULASKI CIRCUIT COURT v. HONORABLE TERESA WHITAKER, JUDGE ACTION NO. 18-CI-00241
NORFOLK SOUTHERN CORPORATION; NORFOLK SOUTHERN RAILWAY COMPANY; THE CINCINNATI, NEW ORLEANS, AND TEXAS PACIFIC RAILWAY COMPANY; WARNER FERTILIZER COMPANY, INC.; AND NATIONWIDE MUTUAL INSURANCE COMPANY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: This case involves a collision between a train and an
automobile at a private railroad crossing. The circuit court found the railroad was not negligent as a matter of law, citing Calhoun v. CSX Transportation, Inc., 331
S.W.3d 236 (Ky. 2011). Appellants essentially ask us to disregard Calhoun and
over a century of railroad tort law defining the duty owed at private crossings and
impose upon railroads the same duty of care owed by all landowners towards
business invitees.1 However, any such remodeling of our train law must come
from our Supreme Court. We must follow the track laid down by established
precedent. Therefore, we affirm.
BACKGROUND
On March 8, 2017, Russell Roberts (“Russell”) was working on a fuel
pump at Warner Fertilizer (“Warner”) in Pulaski County, Kentucky. At Warner’s
entrance is a private railroad crossing (“Warner Crossing”) owned by Norfolk
Southern Corporation2 (“Norfolk”) and maintained by Warner. Warner Crossing is
marked by a crossbuck3 as well as a stop sign. Russell was familiar with the
Warner property, having been there over one hundred times.
1 While appellants argue they are not asking us to overturn Calhoun or expand the law, they are advocating for duties never owed at private railroad crossings before. 2 Appellees (defendants at the trial court level) are Norfolk Southern Corporation; Norfolk Southern Railway Company; and the Cincinnati, New Orleans, and Texas Pacific Railway Company. 3 As described by our Supreme Court, a crossbuck is “[a] sign indicating a railroad crossing, shaped like an ‘X,’ generally placed immediately before the crossing.” Calhoun, 331 S.W.3d at 238 n.4.
-2- Russell left Warner several times that day to obtain replacement fuel
pump parts at a nearby hardware store. Each time he crossed the private crossing.
On his final trip back from the hardware store, Russell failed to stop at the stop
sign and was hit by a train.
Russell and his wife (“the Robertses”) filed a lawsuit in Pulaski
Circuit Court against Warner and Norfolk. Relevant to the appeal, the amended
complaint alleged that Warner Crossing was ultra-hazardous, and that Norfolk had
a duty to maintain the premises in a reasonably safe condition, including a duty to
close the crossing. Relying upon Calhoun, Norfolk moved for summary judgment,
asserting its duties were limited at a private crossing and under the facts it was not
negligent as a matter of law.
Citing Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901
(Ky. 2013), as corrected (Nov. 25, 2013), the Robertses responded that Norfolk, as
landowner, had a duty to maintain the premises in a reasonably safe condition and
to eliminate or warn of unreasonable risks of harm. Id. at 908, 914. Based on this
duty, they argued Norfolk should have eliminated Warner Crossing. They further
argued the Kentucky Supreme Court impliedly overruled Calhoun in Shelton and
its progeny.
Following a hearing, the circuit court granted Norfolk’s motion for
summary judgment, finding it had not breached any duty owed as a matter of law.
-3- The court found that Warner Crossing was a private crossing and thus Norfolk
owed no duty of lookout or warning, citing Calhoun. Even assuming the crossing
was ultra-hazardous (one of the exceptions to the minimal duty at private crossings
rule), it was undisputed Norfolk had fulfilled its elevated duty to sound the train’s
horn. Therefore, summary judgment was proper. The court did not address the
application of traditional premises liability law. This appeal followed.
STANDARD OF REVIEW
“The standard of review on appeal of a summary judgment is whether
the circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law.” Pearson
ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002).
Accordingly, we review a trial court’s grant of summary judgment de novo. Dolt,
Thompson, Shepherd & Conway, P.S.C. v. Commonwealth ex rel. Landrum, 607
S.W.3d 683, 686 (Ky. 2020) (citation omitted).
ANALYSIS
As an initial matter, the Robertses’ brief does not comply with RAP4
32(A)(4), which requires “at the beginning of the argument a statement with
reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner.” Our rules require a preservation statement to
4 Kentucky Rules of Appellate Procedure.
-4- assure the reviewing court that “the issue was properly presented to the trial court
and therefore, is appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d
377, 380 (Ky. App. 2012). When a party fails to abide by the Rules of Appellate
Procedure, we may choose “(1) to ignore the deficiency and proceed with
the review; (2) to strike the brief or its offending portions . . . ; or (3) to review the
issues raised in the brief for manifest injustice only[.]” Hallis v. Hallis, 328
S.W.3d 694, 696 (Ky. App. 2010) (citations omitted); see also Ford v.
Commonwealth, 628 S.W.3d 147, 153-55 (Ky. 2021). In our discretion, we ignore
the deficiency and proceed with the review.
The Robertses argue the circuit court erred in failing to consider
Norfolk’s duties as a landowner under premises liability law and instead relied on
“archaic principles” in granting summary judgment. They ask us “to impose on
Norfolk the duty that our courts impose on all property owners towards business
invitees.” Specifically, they refer to the duty to “eliminate or warn of unreasonable
risks of harm.”5 Shelton, 413 S.W.3d at 914. Under this duty,6 the Robertses
5 In addition to this specific duty, the Robertses also argue that railroads, like all landowners, have the general duty to maintain their premises in a reasonably safe condition, again citing Shelton, 413 S.W.3d at 908. 6 In their reply brief, the Robertses contend Norfolk “violated its own safety policy when it failed to close the Warner Crossing.” To the extent they are asserting Norfolk’s negligence stemmed from the breach of its own policies, and that somehow summary judgment on this issue was inappropriate, we decline to consider this argument. “The reply brief is not a device for raising new issues which are essential to the success of the appeal.” Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979).
-5- contend, Norfolk should have closed the unnecessary and ultra-hazardous private
crossing.
However, we our bound by our Supreme Court’s holding Calhoun v.
CSX Transportation, Inc., 331 S.W.3d 236, 247 (Ky.
Free access — add to your briefcase to read the full text and ask questions with AI
RENDERED: JUNE 27, 2025; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0654-MR
RUSSELL ROBERTS AND ANGIE ROBERTS APPELLANTS
APPEAL FROM PULASKI CIRCUIT COURT v. HONORABLE TERESA WHITAKER, JUDGE ACTION NO. 18-CI-00241
NORFOLK SOUTHERN CORPORATION; NORFOLK SOUTHERN RAILWAY COMPANY; THE CINCINNATI, NEW ORLEANS, AND TEXAS PACIFIC RAILWAY COMPANY; WARNER FERTILIZER COMPANY, INC.; AND NATIONWIDE MUTUAL INSURANCE COMPANY APPELLEES
OPINION AFFIRMING
** ** ** ** **
BEFORE: COMBS, LAMBERT, AND MCNEILL, JUDGES.
MCNEILL, JUDGE: This case involves a collision between a train and an
automobile at a private railroad crossing. The circuit court found the railroad was not negligent as a matter of law, citing Calhoun v. CSX Transportation, Inc., 331
S.W.3d 236 (Ky. 2011). Appellants essentially ask us to disregard Calhoun and
over a century of railroad tort law defining the duty owed at private crossings and
impose upon railroads the same duty of care owed by all landowners towards
business invitees.1 However, any such remodeling of our train law must come
from our Supreme Court. We must follow the track laid down by established
precedent. Therefore, we affirm.
BACKGROUND
On March 8, 2017, Russell Roberts (“Russell”) was working on a fuel
pump at Warner Fertilizer (“Warner”) in Pulaski County, Kentucky. At Warner’s
entrance is a private railroad crossing (“Warner Crossing”) owned by Norfolk
Southern Corporation2 (“Norfolk”) and maintained by Warner. Warner Crossing is
marked by a crossbuck3 as well as a stop sign. Russell was familiar with the
Warner property, having been there over one hundred times.
1 While appellants argue they are not asking us to overturn Calhoun or expand the law, they are advocating for duties never owed at private railroad crossings before. 2 Appellees (defendants at the trial court level) are Norfolk Southern Corporation; Norfolk Southern Railway Company; and the Cincinnati, New Orleans, and Texas Pacific Railway Company. 3 As described by our Supreme Court, a crossbuck is “[a] sign indicating a railroad crossing, shaped like an ‘X,’ generally placed immediately before the crossing.” Calhoun, 331 S.W.3d at 238 n.4.
-2- Russell left Warner several times that day to obtain replacement fuel
pump parts at a nearby hardware store. Each time he crossed the private crossing.
On his final trip back from the hardware store, Russell failed to stop at the stop
sign and was hit by a train.
Russell and his wife (“the Robertses”) filed a lawsuit in Pulaski
Circuit Court against Warner and Norfolk. Relevant to the appeal, the amended
complaint alleged that Warner Crossing was ultra-hazardous, and that Norfolk had
a duty to maintain the premises in a reasonably safe condition, including a duty to
close the crossing. Relying upon Calhoun, Norfolk moved for summary judgment,
asserting its duties were limited at a private crossing and under the facts it was not
negligent as a matter of law.
Citing Shelton v. Kentucky Easter Seals Society, Inc., 413 S.W.3d 901
(Ky. 2013), as corrected (Nov. 25, 2013), the Robertses responded that Norfolk, as
landowner, had a duty to maintain the premises in a reasonably safe condition and
to eliminate or warn of unreasonable risks of harm. Id. at 908, 914. Based on this
duty, they argued Norfolk should have eliminated Warner Crossing. They further
argued the Kentucky Supreme Court impliedly overruled Calhoun in Shelton and
its progeny.
Following a hearing, the circuit court granted Norfolk’s motion for
summary judgment, finding it had not breached any duty owed as a matter of law.
-3- The court found that Warner Crossing was a private crossing and thus Norfolk
owed no duty of lookout or warning, citing Calhoun. Even assuming the crossing
was ultra-hazardous (one of the exceptions to the minimal duty at private crossings
rule), it was undisputed Norfolk had fulfilled its elevated duty to sound the train’s
horn. Therefore, summary judgment was proper. The court did not address the
application of traditional premises liability law. This appeal followed.
STANDARD OF REVIEW
“The standard of review on appeal of a summary judgment is whether
the circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law.” Pearson
ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002).
Accordingly, we review a trial court’s grant of summary judgment de novo. Dolt,
Thompson, Shepherd & Conway, P.S.C. v. Commonwealth ex rel. Landrum, 607
S.W.3d 683, 686 (Ky. 2020) (citation omitted).
ANALYSIS
As an initial matter, the Robertses’ brief does not comply with RAP4
32(A)(4), which requires “at the beginning of the argument a statement with
reference to the record showing whether the issue was properly preserved for
review and, if so, in what manner.” Our rules require a preservation statement to
4 Kentucky Rules of Appellate Procedure.
-4- assure the reviewing court that “the issue was properly presented to the trial court
and therefore, is appropriate for our consideration.” Oakley v. Oakley, 391 S.W.3d
377, 380 (Ky. App. 2012). When a party fails to abide by the Rules of Appellate
Procedure, we may choose “(1) to ignore the deficiency and proceed with
the review; (2) to strike the brief or its offending portions . . . ; or (3) to review the
issues raised in the brief for manifest injustice only[.]” Hallis v. Hallis, 328
S.W.3d 694, 696 (Ky. App. 2010) (citations omitted); see also Ford v.
Commonwealth, 628 S.W.3d 147, 153-55 (Ky. 2021). In our discretion, we ignore
the deficiency and proceed with the review.
The Robertses argue the circuit court erred in failing to consider
Norfolk’s duties as a landowner under premises liability law and instead relied on
“archaic principles” in granting summary judgment. They ask us “to impose on
Norfolk the duty that our courts impose on all property owners towards business
invitees.” Specifically, they refer to the duty to “eliminate or warn of unreasonable
risks of harm.”5 Shelton, 413 S.W.3d at 914. Under this duty,6 the Robertses
5 In addition to this specific duty, the Robertses also argue that railroads, like all landowners, have the general duty to maintain their premises in a reasonably safe condition, again citing Shelton, 413 S.W.3d at 908. 6 In their reply brief, the Robertses contend Norfolk “violated its own safety policy when it failed to close the Warner Crossing.” To the extent they are asserting Norfolk’s negligence stemmed from the breach of its own policies, and that somehow summary judgment on this issue was inappropriate, we decline to consider this argument. “The reply brief is not a device for raising new issues which are essential to the success of the appeal.” Milby v. Mears, 580 S.W.2d 724, 728 (Ky. App. 1979).
-5- contend, Norfolk should have closed the unnecessary and ultra-hazardous private
crossing.
However, we our bound by our Supreme Court’s holding Calhoun v.
CSX Transportation, Inc., 331 S.W.3d 236, 247 (Ky. 2011), that Kentucky’s
century-old private crossing caselaw is still viable precedent. In Calhoun, the
Court was asked “to discard our long-standing, clearly delineated private crossing
precedents, and adopt a new framework that ‘everyone owes everyone else a duty
to act reasonably to prevent foreseeable harm to the other.’” Id. at 242. The Court
“decline[d] the invitation to alter our well-established precedent defining the duty
owed at private crossings.” Id. at 243.
The Robertses attempt to distinguish Calhoun, noting that it did not
consider a railroad’s duties as a landowner under premises liability law, and that it
was decided prior to Shelton and Carter v. Bullitt Host, LLC, 471 S.W.3d 288 (Ky.
2015). While true Calhoun did not specifically address premises liability law, it is
clear the Court was aware of its potential applicability. Justice Venters’ dissent in
Calhoun advocated this exact standard to update our private crossing
jurisprudence, 331 S.W.3d at 248, and yet the majority (impliedly) declined to
adopt it.
As to Shelton and Carter, they are irrelevant to the issue. These cases
simply shifted the focus in open-and-obvious cases away from duty towards breach
-6- of duty. Shelton, 413 S.W.3d at 910. They did not change the duties owed by
landowners under premises liability law. Further, Shelton and Carter did not
involve private railroad crossings.
Simply put, the Robertses urge us to apply a different standard of care
to private crossings than what has been applied historically. This is the same
request that was refused in Calhoun. While there may be legitimate reasons to
modernize our private crossing tort law, see, e.g., Calhoun, 331 S.W.3d at 247
(Venters, J., dissenting), those decisions are best left to our high court. See
Giuliani v. Guiler, 951 S.W.2d 318, 319 (Ky. 1997), as modified on denial of reh’g
(Oct. 2, 1997) (noting it is the Supreme Court’s responsibility to modify and
conform the common law to the changing conditions of our society).
CONCLUSION
Accordingly, the Pulaski Circuit Court’s order granting summary
judgment to Norfolk is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANTS: BRIEF FOR APPELLEES:
Thomas E. Carroll Robert B. Cetrulo Monticello, Kentucky Edgewood, Kentucky
-7-