DARLYN SOTO APPELLANT v. MISSISSIPPI EXPORT RAILROAD COMPANY APPELLEE (2025)

¶1. In March 2018, Mississippi Export Railroad Company (“MS Export”) learned that the Mississippi Department of Transportation (“MDOT”) was conducting an overlay project on Highway 63 in Jackson County, which crossed railroad tracks managed by MS Export.¹ The work would require MS Export to perform repairs at the railroad crossing on Highway 63. MDOT had contracted with Mallette Brothers Construction Company (“Mallette”) to complete the overlay project, including the management of all traffic safety control. MDOT agreed to pay Mallette to provide safety control while MS Export completed repairs at the crossing.

¶2. By September 2018, MS Export and its subcontractor, Land & Water Solutions (“LWS”), were working on the grade and excavation work at the crossing. Mallette maintained traffic controls near the project, including diverting traffic away from the crossing while MS Export and LWS worked. The northbound lanes were closed, and traffic was diverted onto a southbound lane. Traffic barrels were used to block the closed lanes.

¶3. On September 14, 2018, the cones were out of place. As a result, drivers Darlyn Soto and Logan Stokes were not blocked from entering the closed northbound lanes, and two cars crossed into the construction zone and fell into a trench when they tried to proceed across the railroad tracks.

¶4. Soto, Stokes, and Stokes's passenger Loveless (collectively “the plaintiffs”) sued Mallette and Jackson County in county court, alleging negligence. The plaintiffs later amended their complaints to add MS Export and LWS as defendants and agreed to dismiss Mallette after reaching a settlement with the company.² MS Export moved for summary judgment in both actions, and the plaintiffs sought permission to conduct more discovery, which the county court granted. After the plaintiffs deposed MS Export's and LWS's designees, MS Export moved for summary judgment a second time, which the county court granted following a hearing. The plaintiffs appealed to circuit court, and the circuit court affirmed the grant of summary judgment in both actions. The plaintiffs appealed again, and we affirm the circuit court's orders affirming summary judgment, as there is no genuine issue of material fact regarding MS Export's duty to the plaintiffs or, more broadly, the company's negligence.³

FACTS AND PROCEDURAL HISTORY

¶5. Around 5:25 a.m. on September 14, 2018, Soto was driving north on Highway 63, a four-lane highway in Jackson County. Due to construction near the railroad crossing, the northbound lanes were closed, and traffic was diverted onto the southbound lanes, which were temporarily used as a two-lane highway. Though the lanes were outlined through standard, visible, solid white lines, the northbound lane was not completely blocked by traffic barrels. Soto crossed the solid white line and entered the construction zone near the railroad crossing at Plant Daniel. Soto did not see the trench that had been dug right before the railroad crossing, and she drove her car into it.

¶6. Later that evening, around 7:09 p.m., Stokes was driving with passenger Loveless, traveling north on Highway 63. Like Soto, Stokes crossed the solid white line and entered the construction zone near the railroad crossing, as the northbound lane was not fully blocked by traffic barrels. Like Soto, Stokes also drove his car into the trench.

¶7. Soto, Stokes, and Loveless filed suit in Jackson County County Court against Mallette and Jackson County.⁴ The plaintiffs alleged that Mallette was negligent “in the operation and control of the road construction site” and that Jackson County was vicariously liable for this negligence based on the doctrine of respondeat superior. The parties agreed to dismiss Jackson County after the County successfully argued the Highway 63 project was MDOT's work.

¶8. The plaintiffs deposed Carlos Morales, who was acting as Mallette's project manager for the Highway 63 project at the time of the incident. Morales testified that he was “heavily involved” in “traffic control,” meaning “setting up the traffic control devices or also making checks on traffic control devices, making sure things are properly in place.” Morales testified that another Mallette employee acted as “superintendent” at the time and was to “coordinate all phases of construction,” including “putting out warning and barrels and all of that” during “all phase of construction.” The project's safety officer also submitted weekly traffic control reports that documented “that the signs, warnings, barricades, and barrels were in their proper place and functioning.” Morales also signed off on a report from two days before the incident confirming that all traffic control devices were properly placed.

¶9. Morales testified that he called MS Export to inform the company that Mallette would be doing construction on Highway 63 near the railroad tracks. In return, MS Export let Mallette know when they would be working on the railroad crossing “because the road would require a shift in traffic in order to ․ allow them to do that work,” and that Mallette “needed to shut down one side and divert traffic over to the other side.” MDOT allowed and directed Mallette to shut down the northbound lanes and use an existing crossover to facilitate the lane change. Morales testified that the crossover was “re-striped” to show the temporary flow of traffic. Morales testified that Mallette was responsible for setting up traffic control devices, such as barrels, to close the northbound lanes. Mallette did not perform any construction work while MS Export was working on the tracks.

¶10. Following Morales's deposition, the plaintiffs moved to amend the complaint again, this time to include MS Export as a defendant. In their motion, the plaintiffs alleged that Mallette had “provided information regarding” MS Export's involvement “in the events that [were] the subject” of litigation. The court granted the motion, and the plaintiffs amended their complaint. MS Export answered and denied liability. MS Export claimed that Mallette performed the primary road work and that Mallette “was responsible for the placement of all warnings and signage related to the construction and detour.”

¶11. MS Export later moved for summary judgment, arguing that it “had no duty regarding the placement and inspection of the warnings, road cones, barrels and barricades used on the Highway 63 road project.” In support of its motion, MS Export included Morales's deposition and the traffic reports of the crashes. The plaintiffs moved for additional time to conduct discovery “to determine who moved the barricades and/or road cones that controlled the flow of traffic on Highway 63” on the day of the accidents. They sought to depose MS Export and LWS, MS Export's subcontractor who dug the trench.

¶12. The county court granted the plaintiffs’ motion for additional time to depose MS Export and LWS. The court ordered the parties to complete supplemental briefing after the depositions and then to schedule a hearing on MS Export's motion for summary judgment.

¶13. The plaintiffs deposed Mark Miller, MS Export's Rule 30(b)(6) designee. See M.R.C.P. 30(b)(6). Miller testified that MS Export was not certified or qualified to do traffic control and that they always subcontracted to someone else if traffic control was necessary. In the case of the Highway 63 construction, MDOT had hired Mallette to do traffic control.

¶14. Miller testified MS Export learned that MDOT planned an “overlay project” on Highway 63, which would raise the level of the asphalt on the street, requiring MS Export to raise the railroad tracks to ensure a smooth transition as cars drove over the tracks. So MS Export met with MDOT and Mallette, and it was determined that Mallette would provide traffic control for MS Export's work.

¶15. Miller testified that MS Export had no knowledge of why the barrels were not in place at the time of the accidents. He explained that there were other points of ingress for MS Export or LWS's employees to access the job site and rejected the suggestion that the barrels could have only moved if MS Export or LWS had moved them.

¶16. Joe Holland, LWS's Rule 30(b)(6) designee, testified that MS Export subcontracted LWS to work on the railroad crossing and that MS Export fully supervised and led LWS. Holland explained that LWS was not on site at the time of Soto's crash and only learned about it when LWS workers arrived. Holland was not sure if MS Export was on the site at the time. He did not know who moved the barrels and testified that LWS understood that Mallette was responsible for traffic control at all times.

¶17. MS Export filed another motion for summary judgment, again asserting that it owed no duty to the plaintiffs. MS Export supplemented the motion with LWS's deposition, in which LWS's designee testified that all traffic control was “always ․ subbed out to Mallette” and that the Highway 63 project was no different. MS Export also relied on Morales's deposition, in which he stated that Mallette was solely responsible for traffic control and barrel placement.

¶18. In response, the plaintiffs argued that MS Export had a statutory duty to maintain the railroad, citing Mississippi Code Annotated section 77-9-251 (Rev. 2018).⁵ They also argued that MS Export had a contractual duty through its contract with Mississippi Power to maintain the tracks. Finally, the plaintiffs argued that MS Export had a common law duty to act as a reasonably careful business. In this argument, they stated that it was “not clear” who moved the barrels that day and alleged it was a question of material fact that precluded summary judgment.

¶19. In support of their responses, the plaintiffs provided, among photographs and accident reports, an affidavit from a purported investigator of construction-related incidents, who swore that Highway 63 northbound should have been fully blocked off by cones or barrels; a contract between MS Export and Mississippi Power Company; LWS documents that showed LWS dug the trench into which the plaintiffs’ cars crashed; Miller's deposition, which stated that MS Export was on the jobsite that day; and Miller's and Holland's depositions, in which they agreed that traffic control devices were important to keep jobsites safe from drivers.

¶20. The county court granted summary judgment in MS Export's favor after finding that Mallette “close[d] the road and handl[ed] all the traffic” and that MS Export had not been responsible for anything related to the traffic control.

¶21. The plaintiffs appealed to the circuit court, which affirmed the grant of summary judgment. The circuit court found it was “undisputed” that the northbound lanes on Highway 63 were supposed to be closed and blocked by barricades to prevent drivers from entering the jobsite and that the barrels were not in position on the day of the accident. But the circuit court also found that Mallette, not MS Export, was responsible for maintaining and inspecting the traffic control devices every day. The court further noted that MS Export “is not trained or qualified to perform traffic safety control,” which is why it relied on Mallette to fulfill its role. The circuit court found “no genuine issue of material fact concerning MS Export's liability” and affirmed the grant of summary judgment in MS Export's favor.

¶22. The plaintiffs appealed.

ANALYSIS

¶23. “An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo.” McKean v. Yates Eng'g Corp., 210 So. 3d 1037, 1042 (¶18) (Miss. Ct. App. 2015). We must “determine whether summary judgment is proper by considering whether ‘the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact ․’ ” Hill v. City of Horn Lake, 160 So. 3d 671, 675 (¶8) (Miss. 2015) (quoting M.R.C.P. 56(c)). “[S]ummary judgment is appropriate when the non-moving party has failed to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Buckel v. Chaney, 47 So. 3d 148, 153 (¶10) (Miss. 2010) (quotation marks omitted).

¶24. To defeat a motion for summary judgment, the nonmoving party “may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial.” M.R.C.P. 56(e). The nonmoving party must present “significant probative evidence showing that there are indeed genuine issues for trial.” Price v. Purdue Pharma Co., 920 So. 2d 479, 485 (¶16) (Miss. 2006).

¶25. In a negligence suit, a plaintiff “must prove by a preponderance of the evidence each element of negligence: duty, breach of duty, proximate cause, and damages.” Patterson v. T.L. Wallace Const. Inc., 133 So. 3d 325, 331 (¶18) (Miss. 2013). The “plaintiff must demonstrate duty and breach of duty before any other element.” Brown ex rel. Ford v. J.J. Ferguson Sand & Gravel Co., 858 So. 2d 129, 131 (¶8) (Miss. 2003). “[W]hether a duty exists in a negligence case is a question of law to be determined by the court.” McKean, 210 So. 3d at 1042 (¶19). If the nonmoving party “fails to make a showing sufficient to establish an essential element of the claim or defense, then all other facts are immaterial and the moving party is entitled to judgment as a matter of law.” McClinton v. Delta Pride Catfish Inc., 792 So. 2d 968, 973 (¶9) (Miss. 2001).

¶26. The plaintiffs argue that MS Export owed a statutory duty under Mississippi Code Annotated section 77-9-251 to keep the crossing safe, a contractual duty through a contract with Mississippi Power to maintain signs and warnings at the crossing, and a common law duty to act as a reasonably careful business at the crossing. They argue that MS Export had a duty to warn of the danger of the trench at the railroad and breached that duty by failing to ensure that the traffic control devices were secure.

¶27. Addressing first the statutory and contractual duty claims, two cases are instructive. In Chisolm v. Mississippi Department of Transportation, 942 So. 2d 136 (Miss. 2006), a car crashed after traveling through a construction zone and hitting “a twelve to eighteen inch bolt” that was in the road at the time. Id. at 139 (¶2). The plaintiffs sued the Mississippi Department of Transportation and its contractor, and the circuit court found that MDOT was immune and granted summary judgment. Id. The Supreme Court affirmed after reviewing the case de novo, reasoning that there was no proof MDOT had a duty at the job site because all evidence “points to negligence by Great River, MDOT's independent contractor.” Id. at 144 (¶21). Great River, not MDOT, “was responsible for the installation and maintenance of signage and warning devices for debris removal from areas traveled by the public.” Id. The Court noted that “the plaintiffs have presented no evidence that MDOT's employees committed any act or omission that led to the accident.” Id.

¶28. In Rein v. Benchmark Const. Co., 865 So. 2d 1134 (Miss. 2004), “an elderly Alzheimer's patient” died in her nursing home after “being attacked and bitten in her bed by fire ants[.]” Id. at 1136-37 (¶2). Her heirs sued multiple defendants and settled with some, including the nursing home and a pest control company. Id. Summary judgment was granted to other defendants, including a landscape contractor. See id. The Supreme Court noted that the landscape company “had a commitment only to maintain the lawn and shrubbery,” as they were “a landscape company, not a pest control company.” Id. at 1147 (¶41). Plus, the contract between the landscaper and the nursing home “does not specify duties to treat for insect infestation outside much less inside.” Id. The Supreme Court concluded that the trial court “correctly granted summary judgment ․ since as a landscape company only, [the landscaper] did not assume nor owe a duty to provide fire ant detection, control or eradication.” Id. at 1148 (¶44).

¶29. Here, MS Export's statutory and contractual commitments were to maintain the train tracks and signage at the tracks. The plaintiffs have shown no evidence that MS Export's duties to maintain the railroad tracks and signage on the track extended to the signage related to road closures. Section 77-9-251 imposes a duty on railroad companies “to make proper and easy grades in the highway [where a railroad crosses the highway], so that the railroad may be conveniently crossed, and to keep such crossings in good order.” MS Export's contract with Mississippi Power (who owned the railroad tracks at issue) provided that MS Export would “maintain” and “inspect[ ] all railbed, rail, rail fittings, ties, switches, right-of-way, ditches, culverts, grade crossings, signals and signs” at the crossing. Neither the statute nor the contract included a duty to maintain traffic control devices leading up to the tracks. As in Chisolm and Rein, all evidence regarding the traffic control devices points to Mallette—the entity charged with traffic device control and maintenance—not MS Exports.

¶30. As to the plaintiffs’ allegation that MS Export owed a duty to act as a reasonably prudent business, even accepting there was a duty, there is no evidence that MS Export breached that duty because there is no evidence that MS Export failed to do something that it should have.

¶31. The Supreme Court has recently emphasized that

while inferences of negligence may be drawn from circumstantial evidence, those inferences must be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts. Where plaintiff in a negligence action has only presented proof that the actual cause was one of a number of possibilities, to enable an inference to be drawn that any particular cause is probable, the other causes must be eliminated. Thus, when the evidence shows that it is just as likely that accident might have occurred from causes other than defendant's negligence, the inference that his negligence was the proximate cause may not be drawn.

Hardin v. Town of Leakesville, 345 So. 3d 557, 566 (¶41) (Miss. 2022) (citations and quotation marks omitted).

¶32. Applying this principle to this case, it is also fatal to the plaintiffs’ claims. The plaintiffs have presented no evidence to indicate who or what moved the barrels or when they were moved. The plaintiffs’ claims assume that MS Export did not check to see whether the barrels were in place when it left the jobsite on September 13 and that the barrels were out of place at that time. This assumes that the barrels did not get moved after MS Export left the jobsite and before Soto drove into the construction zone. It also assumes that MS Export, not emergency services responding to Soto's accident, moved the cones wide enough for Stokes to drive by later. Plus, none of the deponents was certain that MS Export was on the jobsite before Soto's accident, and at least one deponent noted that there were several access points for MS Export and LWS workers that did not involve Highway 63.

¶33. Evidence shows that Mallette was charged with the placement, maintenance, and control of the traffic control devices and should have conducted daily inspections to ensure proper placement. Mallette last inspected the construction area two days before the accident, when all barrels and barricades were in place. There is no evidence to conclude that MS Export moved the barrels; doing so would require a fact-finder to “engag[e] in pure speculation about the facts.” Id. at 566 (¶41). Thus, because “the evidence shows that it is just as likely that accident might have occurred from causes other than defendant's negligence, the inference that [the defendant's] negligence was the proximate cause [of the injury] may not be drawn.” Id.

CONCLUSION

¶34. The circuit court properly affirmed the county court's summary judgments in favor of MS Export because there is no genuine issue of material fact that MS Export had no statutory or contractual duty to maintain traffic control devices, nor is there a genuine issue of material fact regarding MS Export's alleged negligence.

¶35. AFFIRMED.

FOOTNOTES

1.   Mississippi Power Company owns the tracks, which run into the Victor J. Daniel Jr. Electric Generating Plant, and contracts with MS Export to maintain the tracks.

2.   The parties later agreed to dismiss Jackson County.

3.   This Court consolidated the appeals on May 7, 2025, as the cases stem from similar sets of operative facts.

4.   Soto is the plaintiff of one suit, while Stokes and Loveless are the plaintiffs in the other. Other than the facts involving each plaintiff, the suits’ allegations are essentially identical and will be discussed as one, except where necessary.

5.   “Where a railroad is constructed so as to cross a highway, and it be necessary to raise or lower the highway, it shall be the duty of the railroad company to make proper and easy grades in the highway, so that the railroad may be conveniently crossed, and to keep such crossings in good order. It shall be the duty of the railroad company to erect and keep in order all bridges on any highway, at such points as bridges may be necessary to cross the railroad. Any company which shall fail to comply with these provisions within sixty (60) days from the filing of written notice by the board of supervisors of the county in which said crossing is located, served upon the agent of said railroad company located in said county by the sheriff, as other processes are served, shall forfeit the sum of the cost of construction of said bridge or crossing, to be recovered by action in the name of the county in which the bridge or crossing is situated, upon an itemized bill of cost of said work.” Miss. Code Ann. § 77-9-251.

ST. PÉ, J., FOR THE COURT:

BARNES, C.J., CARLTON AND WILSON, P.JJ., WESTBROOKS, LAWRENCE, McCARTY, EMFINGER AND WEDDLE, JJ., CONCUR. McDONALD, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.