Plead it or Weep: You Can’t Assert a New Theory of Liability in Response to a Motion for Summary Judgment

From the Desk of Josh Hayward:

A motion for summary judgment can be defeated with a showing of a genuine issue of material fact. But can a party bring up new theories of liability—not asserted in the pleadings—in a response to a motion for summary judgment to create an issue of material fact? Read on to find out.  

Claims Pointer:

In this case, the Oregon Court of Appeals ruled that summary judgment does not provide an opportunity for litigants to assert new theories of liability. Instead, the Court can only consider the facts and theories alleged in the pleadings.

Rodriguez v. Union Pac. R.R. Co., 322 Or. App. 1, 10, 519 P.3d 148, 153 (2022)

Facts:

Plaintiff was seriously injured when she was hit by a freight train while crossing a set of railroad tracks in a marked pedestrian zone. The railroad tracks were owned and maintained by Defendant Union Pacific Railroad Company (“UP”). Plaintiff sued UP, alleging that UP’s negligence caused her injuries.

Plaintiff’s First Amended Complaint alleged that the crosswalk was unreasonably dangerous due to conditions including restricted line of sight “from the perspective of a pedestrian” that made it difficult for a pedestrian to see an approaching train. The Amended Complaint also included several general, allegations of negligence, including that UP was negligent by “maintaining the Crossing in a dangerous condition for pedestrians.”

UP filed a motion for summary judgment, arguing that Plaintiff’s claims were preempted by the Federal Railroad Safety Act (“FRSA”), an Act which preempts state tort claims arising from a railroad’s alleged failure to maintain adequate warning devices at federally funded crossings.

Prior to the hearing on UP’s motion for summary judgment, Plaintiff sought leave to amend her Complaint for a second time to add allegations that vegetation near the crossing had obscured the train operator’s sight line of Plaintiff approaching the crossing. The trial court denied the motion.

At the summary judgment hearing, Plaintiff argued that although the FRSA preempted claims relating to the design and construction of the crossing and its warning devises, the FRSA did not preempt claims based on common law “premises liability” or claims relating to sight-line obstructions due to vegetation along the rail-line. Plaintiff also argued that her allegation that UP was negligent in maintaining the crossing, was broad enough to encompass a claim that vegetation had obscured the operator’s line of sight. Therefore, the allegation was broad enough to create a factual issue, even though the vegetation sight-line obstruction claim was not specifically pled in the Amended Complaint.  

UP noted that the Amended Complaint’s only factual allegation regarding line of sight described obstructions to the pedestrian’s line of sight, not the train operator’s line of sight. Additionally, UP explained that there were no allegations in the Amended Complaint that mentioned vegetation. The Court denied Plaintiff’s request to amend their Complaint to add such an allegation.

The trial court granted UP’s motion for summary judgment. The Court first held that a claim based on common law “premises liability” would be no different than the state law tort claim that is subject to preemption under FRSA, and therefore Plaintiff’s premises liability claim was also preempted.

The trial court also noted that although Plaintiff’s memorandum in opposition to UP’s summary judgment motion referenced evidence of an obstruction to the train operator’s line of sight, the Amended Complaint made no such allegations.

Finally, the trial court concluded that the Plaintiff’s general allegation of negligent maintenance did not encompass this sight-line theory of negligence.

Plaintiff appealed.

Law:

In Oregon, “a party’s pleadings matter.” Warner v. Synnes et al., 114 Or 451, 456-60, 235 P 305 (1925). “[A party’s] pleadings declare and control the issues to be determined and the relations that the parties bear to each other.” Id.

Under the Oregon Rules of Civil Procedure, a party may amend their pleadings “once as a matter of course” before being served with a responsive pleading, or within 20 days if no such responsive pleading is required. Or. R. Civ. P. 23. Otherwise, amendments to pleadings can be made only with the consent of the court or with the written consent of the opposing party. Id.

Summary judgment does not present an opportunity to assert a theory of liability not in the pleadings. See Permapost Products Company v. Osmose, Inc., 200 Or App 699, 705, 116 P.3d 909 (2005) (Striking a plaintiff’s unpled assertion of fraudulent concealment in response to Defendant’s motion for summary judgment on a statute of limitations issue).  

Allowing a new legal theory at summary judgment would amount to an amendment of the pleadings, an amendment which would then need to meet the requirements of ORCP 23(A). Id at 705, 116 P.3d 909. ORCP(B) allows issues outside of the pleadings to be treated as included if the issues “are tried by express or implied consent of the parties,” but otherwise bringing up such issues is not allowed on summary judgment. Id, (quoting ORCP 23(B)).

Analysis:

On appeal, Plaintiff argued that the trial court erred in granting summary judgment because there is a strong presumption against federal preemption and that common law premises liability was an exception to the preemption. The Court determined that there was no authority supporting such an exemption relating to the design of railroad crossings, and that the trial court did not err in granting UP’s summary judgment motion on this issue.

On the new theory of negligence issue, Plaintiff argued that even in the absence of a specific allegation, the Amended Complaint, read as a whole, included allegations that were broad enough to include the theory that vegetation impaired the sight line of both pedestrians and train operators. In support, Plaintiff again relied on the general allegation in the Amended Complaint that UP was negligent in “maintaining the Crossing in a dangerous condition for pedestrians.”

In response, UP argued that “pleadings matter,” and that since Plaintiff did not plead a specific allegation relating to a vegetation sight line obstruction, Plaintiff was precluded from bringing this new theory to defeat summary judgment. UP further argued that Plaintiff’s First Amended Complaint could not be reasonably construed to include the vegetation theory and pointed out that the trial court had expressly denied Plaintiff’s Motion to amend the Complaint to allege such a theory.

The Court emphasized that although Plaintiff’s Amended Complaint was very detailed, and contained an expansive description of the conditions of the intersection, the crossing, and the nine ways the crossing could be unreasonably dangerous, the Complaint made no mention of the presence of vegetation near the crossing or how the presence of vegetation affected line of sight. The Court noted that although the Complaint generally alleged “maintenance of the crossing” not the “conditions surrounding the crossing,” which would include obstructing vegetation. Therefore, this general allegation of negligence did not include vegetation sight line obstruction.  

In conclusion, the Court determined that summary judgment was appropriate. The First Amended Complaint did not include a theory of liability related to vegetation and sight line obstruction, and that to make such a finding would be an “unreasonable extension of the pleadings.”

Big Picture:

Absent consent from opposing counsel or the court, a plaintiff cannot assert a new theory of liability in a Response to a Motion for Summary Judgment. Litigants should ensure that all potential legal theories are included in pleadings as early as possible.