Longnecker et al v. Union Pacific Corporation

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
RICKY LONGNECKER, et al.,
Plaintiffs,
VS.
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. 4:23-CV-03069
UNION PACIFIC CORPORATION, et al.,
Defendants.
MEMORANDUM & ORDER
Before the Court is Defendant Union Pacific Railroad Company (“UPRR”)’s Motion for
Summary Judgment (ECF No. 47), as well as UPRR’s three Motions to Strike (ECF Nos. 48, 52,
and 53). The Court held a hearing on the Motions on April 27, 2026. For the reasons that follow,
the Court now GRANTS IN PART Defendant’s Motion to Limit Expert Testimony by Brian
Huang (ECF No. 48) and Defendant’s Motion to Strike Brian Huang’s Declaration (ECF No. 53)
and GRANTS Defendant’s Motion for Summary Judgment (ECF No. 47). The Motion to Strike
Steve Wittman’s Declaration (ECF No. 52) is DENIED AS MOOT.
I. 	BACKGROUND
A complete discussion of the facts of this case, as alleged by Plaintiffs, is contained in this
Court’s Memorandum and Order on Defendant’s Motion to Dismiss (ECF No. 34). The Court will
briefly recite the relevant facts.
Plaintiffs Ricky Longnecker, Jessie Bunciaga, and Iran Scott Windom are employees of
the Harris County Flood Control District. Pls.’ Second Am. Compl. (“SAC”) 1, ECF No. 28. On
United States District Court
Southern District of Texas
ENTERED
May 08, 2026
Nathan Ochsner, Clerk
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April 26, 2022, they were clearing debris from the navigable waters of Langham Creek when their
boat struck the remnants of a steel railway bridge. Id. at ¶ 19, 21. Plaintiffs were ejected from the
boat and suffered serious injuries. Id. at ¶ 23–27. Plaintiffs allege that the steel beams in question
were part of an old railway bridge previously owned and operated by Defendant UPRR, in its
capacity as successor in interest to the Missouri Pacific Railroad Company.1 Id. at ¶ 22.
Prior to 1992, Defendant owned and operated a rail line right-of-way extending from
Houston to Katy, Texas, running parallel to Interstate Highway 10. Plaintiffs’ Response
(“Response”), ECF No. 50, at ¶ 2. That right-of-way included railroad tracks, rail structures, and
bridge structures spanning waterways along the corridor, including a bridge crossing Langham
Creek at the location where Plaintiffs were injured. Id. In 1992, the Texas Department of
Transportation (TxDOT) purchased the real property on which the bridge is located from
Defendant. Defendant’s Exhibit A-1 (“Purchase Agreement”). The Purchase Agreement exempted
from the sale “all improvements owned by [UPRR] located on the Property,” including “all tracks,
signals, [and] bridges. . .” Purchase Agreement at 7 (Section 1(b)). UPRR also reserved “the
exclusive right to use the Property for maintenance, operation, repair, renewal, reconstruction, and
removal of railroad trackage and appurtenances” (“Retained Trackage Rights”) for a period of five
years, that is, until 1997. Id. at 17 (Section 10); 47 (Exhibit G). Any tracks or other improvements
not removed prior to termination of the Retained Trackage Rights would automatically become
the property of TxDOT. Id. at 47.
The exact date on which the bridge in question was removed is unknown. Google Earth
satellite images show that the bridge was removed sometime between 1995 and 2002. Response
1 For the sake of clarity, the Court will use Union Pacific Railroad Company (UPRR)
interchangeably with Missouri Pacific Railroad Company.
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at ¶ 4-5. Plaintiffs allege that UPRR demolished the bridge during this period and that in doing so,
it negligently failed to remove all of the bridge remnants from Langham Creek, “create[ing] a
hidden danger to unsuspecting users of the waterway” that resulted in Plaintiffs’ injuries some
twenty years later. Id. at ¶ 18. Plaintiffs bring claims of negligence and gross negligence against
UPRR.
At the summary judgment stage, Defendant has not challenged the contention that the
bridge was removed negligently or that the Plaintiffs were injured as a result. Rather, Defendant
argues that Plaintiffs have not produced sufficient evidence that UPRR was responsible for
removing the bridge and that, even if there were such evidence, Plaintiffs’ claims sound in
premises liability rather than ordinary negligence.
II. 	MOTIONS TO STIKE
Before addressing Defendant’s Motion for Summary Judgment, the Court will briefly
address the Motions to Strike to the extent necessary to resolve the Motion for Summary Judgment.
The Court GRANTS IN PART Defendant’s Motion to Limit Expert Testimony by Brian
Huang (ECF 48) and Motion to Strike Brian Huang’s Declaration (ECF 53). Mr. Huang is an
engineering expert. He is undoubtedly qualified to testify about the incomplete removal of the
bridge and to opine that the bridge was removed negligently. But his conclusion that Defendant
UPRR, rather than TxDOT, was responsible for removing the bridge has nothing to do with his
engineering expertise. Rather, it appears to be based on the contract between TxDOT and Union
Pacific, Google Earth images, and emails between TxDOT and Plaintiffs’ former counsel
regarding the various contracts. Similarly, Mr. Huang’s statement that the bridge was removed in
2002 is seemingly based only on Plaintiffs’ complaint, rather than on his engineering expertise.
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The Court therefore grants these Motions insofar as they seek to strike or limit the portions of Mr.
Huang’s testimony and declaration that offer an opinion as to which entity removed the bridge and
in what year the demolition occurred. The other portions of his testimony and declaration will be
considered.
Defendant has also filed a Motion to Strike Steve Wittman’s Declaration (ECF 52). But
because the Court finds that summary judgment in favor of Defendant is appropriate even
considering the evidence put forward in Mr. Wittman’s declaration, the Court DENIES this
Motion as moot.
III. 	STANDARD OF REVIEW
Summary judgment under Rule 56 “is proper ‘if 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 and that the moving party is entitled to a judgment as a matter
of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting F ED. R. C IV. P. 56(c)). A
genuine issue as to a material fact arises “if the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court must draw all “reasonable inferences . . . in favor of the nonmoving party, but the
nonmoving party ‘cannot defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or only a scintilla of evidence.’” Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007)
(quoting Turner v. Baylor Richardson Medical Center, 476 F.3d 337, 343 (5th Cir. 2007)). “[T]he
movant bears the initial responsibility of demonstrating the absence of a genuine issue of material
fact 	with 	respect 	to 	those 	issues 	on 	which 	the 	movant 	bears 	the 	burden 	of 	proof 	at
trial.” Transamerica Ins. Co. v. Avenell, 66 F.3d 715, 718 (5th Cir. 1995). “For any matter on
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which the non-movant would bear the burden of proof at trial, however, the movant may merely
point to the absence of evidence and thereby shift to the non-movant the burden of demonstrating
by competent summary judgment proof that there is an issue of material fact warranting
trial.” Id. at 718–19.
IV. 	DISCUSSION
Defendant raises two related arguments in favor of summary judgment. First, it argues that
Plaintiffs have not produced any evidence from which a jury could conclude that it was UPRR that
removed the bridge. Second, Defendant argues that even if Plaintiffs can demonstrate that UPRR
removed the bridge, their claims against UPRR sound in premises liability because UPRR was an
owner or occupier of the property in question for premises liability purposes at the time that the
alleged bridge removal occurred. Plaintiffs respond that (1) there is sufficient evidence from which
a jury could conclude that UPRR was responsible for demolishing the bridge and (2) that their
claims sound in ordinary negligence, rather than premises liability, because UPRR was more akin
to a third-party independent contractor at the time of removal than an owner or occupier. It is
undisputed that Plaintiffs cannot succeed if their claims against Defendants sound in premises
liability, because Defendant was not the owner or possessor of the property at the time of Plaintiffs’
injuries. See Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 642 (Tex. 2016) (dismissing
premises liability claim against prior owner arising out of dangerous condition of real property,
“regardless of the previous property owner’s role in creating the condition”).
A. Plaintiffs have produced sufficient evidence from which a jury could conclude that
UPRR removed the bridge sometime between 1995 and 1997.
Viewing the evidence in the light most favorable to Plaintiffs, the Court agrees that there
is sufficient evidence from which a jury could conclude that it was UPRR that removed the bridge.
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Plaintiffs have produced Google Earth images showing that the bridge was removed between 1995
and 2002 and emails from the Texas Attorney General’s Office in response to a Public Information
Request which represent that TxDOT could not find any records showing that it hired a contractor
to demolish the railroad bridge and that demolishing the bridge would not have been within the
scope of its highway construction contract. See Plaintiffs’ Exhibits 3 & 4 (Google Earth Images);
Exhibit 2-A (TxDOT Correspondence). Plaintiffs also point to the Purchase Agreement, which
states that Defendant maintained the exclusive right to use and access its tracks until the end of
1997, and several news articles from 1997—provided by Defendant—which state that (1) UPRR
requested an extension of its Retained Trackage Rights in 1997 and TxDOT refused and (2) UPRR
intended to finish removing its tracks by December of 1997. See Purchase Agreement; Defendant’s
Exhibits F-I (news articles).
Based on this evidence, a jury could reasonably conclude that UPRR demolished the
bridge. But Plaintiffs have not pointed to any evidence suggesting that UPRR removed the bridge
after 1997, as Plaintiffs initially plead in their complaint. To the contrary, the available evidence
suggests that UPRR finished its track removal by the end of 1997, when its right to use the tracks
and bridge and to access the property terminated. Indeed, in its briefing on the Motion for Summary
Judgment, Plaintiffs state that UPRR “more likely than not removed the subject bridge in 1997
when it was removing its tracks.” Response at 20. The Court will therefore assume that UPRR
removed the bridge sometime between 1995 and 1997.
B. UPRR was a property owner for premises liability purposes until the end of 1997.
“[T]he application of premises liability to an injury arising from a property condition
depends not on the nature of the condition, but on the party against whom liability is sought.”
Arredondo v. Techserv Consulting & Training, Ltd., 567 S.W.3d 383, 391 (Tex. App.—San
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Antonio 2018), rev’d in part, aff’d in part, 612 S.W.3d 289 (Tex. 2020). If the negligent party was
a property owner or occupier at the time that it created the dangerous condition, premises liability
principles apply. If the negligent party was a third-party contractor, ordinary negligence applies.
The key cases on this issue are Strakos v. Gehring, 360 S.W.2d 787 (Tex. 1962) and
Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex. 2016). In Strakos, the defendant was a
third party who contracted with Harris County to remove fences along a roadway. 360 S.W.2d at
789. The contractor failed to refill the holes left by the fences and the plaintiff was injured when
he later stepped into one of the holes. Id. at 788–89. The Strakos court concluded that the
defendant-contractor could be held liable for this negligent work despite the fact that Harris County
had “accepted” the work, rejecting the notion that the landowner’s acceptance of the work
immunized the contractor from liability. Id. at 790.
In Occidental, Occidental Chemical Corporation added an acid-addition system to a plant
it owned in 1992, and later sold the plant to Equistar Chemicals, L.P. in 1998. 478 S.W.3d at 642.
In 2006, the plaintiff was injured by the acid-addition system. Id. at 642–43. The Texas Supreme
Court held that the plaintiff could not recover from Occidental, concluding that (1) “premises-
liability principles apply to a property owner who creates a dangerous condition on its property,”
regardless of how the action is pled, and (2) “if an injury should occur after the condition’s creator
has conveyed the property, the premises-liability claim will, as a general rule, lie against the
property’s new owner.” Id. at 648.
In other words, in order to overcome summary judgment, Plaintiffs must produce evidence
from which a jury could conclude that UPRR was not the owner or occupier of the property for
premises liability purposes at the time the bridge was removed, that is, between 1995 and 1997.
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While the Court previously rejected the argument that Plaintiffs’ claims sounded in premises
liability at the motion to dismiss stage, this decision relied on Plaintiffs’ allegation that UPRR
removed the bridge in 2002—after UPRR’s Retained Trackage Rights terminated in 1997. The
Court emphasized that “[i]mportantly, when UPRR removed the bridge [in 2002], it did not own
any of the rail line property.” Id. at 5. In a footnote, the Court further noted: “At the hearing,
Plaintiff argued that [the Purchase Agreement] merely states that UPRR retained property rights
in the railway until 1997. . . The Court agrees with Plaintiff’s reading of the contract.” Id. at 5, n.
2 (emphasis added).
Defendant argues that UPRR’s Retained Trackage Rights under the Purchase Agreement
are decisive. Under the Agreement, UPRR retained “the exclusive right to use the Property for
maintenance, operation, repair, renewal, reconstruction, and removal of railroad trackage and
appurtenances” until the end of 1997. Purchase Agreement at 17. UPRR also retained ownership
of the railroad tracks, including the bridge in question, during this period. Id. at 7. According to
Defendant, these property rights constituted an interest in the real property sufficient to render
UPRR a property owner or occupier rather than a third-party contractor for liability purposes,
meaning that premises liability principles apply. This is consistent with the Court’s (and
Plaintiffs’) assumption at the motion to dismiss stage.
While acknowledging that UPRR was not a third-party independent contractor like the
defendants in Strakos and related cases, Plaintiffs argue that UPRR’s role was that of a non-owning
third party, as in Strakos, rather than a property owner, as in Occidental. In support, Plaintiffs rely
on the undisputed fact that TxDOT, not UPRR, was the owner of the real property on which the
tracks were located from 1992 onward. But this argument confuses property law and tort law. For
purposes of tort liability, Texas courts look not only to whether a defendant was the owner of the
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real property, but to whether the defendant exercised “sufficient control over the part of the
premises that presented the alleged danger so that the defendant has the responsibility to remedy
it.” United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 479 (Tex. 2017) (internal quotations
omitted).
The Texas Supreme Court’s discussion in Occidental is instructive. The court noted:
[A property] owner’s duty. . . is rooted in its control over the property, which is to
say premises liability. Such liability rests on two theoretical assumptions: (1) the
property owner controls the premises and is therefore responsible for dangerous
conditions on it, and (2) the property owner is in a superior position to know of and
remedy the dangerous condition. Third parties, such as the owner’s contractors or
servants, may share that duty while they control the property, but, as Strakos
recognizes, the duty of these third parties is not necessarily co-extensive with that
of the property owner because “the modern approach is to place contractors on the
same footing as manufacturers of goods and apply the same general principles of
negligence even after the acceptance of the work.” (quoting Strakos, 360 S.W.2d at
792). The contractor’s duties are thus tied not only to its control of the premises but
also to the quality of its contracted work. This latter duty may be judged under
ordinary-negligence principles even after the contractor no longer controls the
premises.
Occidental Chem. Corp., 478 S.W.3d at 646–47. As this passage makes clear, the fact that
the defendant in Strakos was an independent contractor hired by the property owner for a specific
purpose is not merely happenstance, but rather was essential to the Strakos Court’s holding.
Indeed, the duty that was breached in Strakos was that which arose out of “the quality of [the
contractor’s] contracted work,” not that which arose out of the contractor’s control of the premises.
Plaintiffs’ argument that Strakos governs the liability of any third party who is not the owner of
the real property is therefore misplaced.
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Here, there is no evidence (and Plaintiffs have not suggested) that TxDOT hired UPRR as
an independent contractor to remove the bridge in question.2 Rather, UPRR retained the right to
remove its tracks and bridges under the purchase agreement, together with the exclusive right to
use the property in order to operate its railroad. There could be no question of TxDOT “accepting”
UPRR’s work because TxDOT never asked UPRR to do any work in the first place. Given that the
central issue in Strakos was whether a property owner’s acceptance of a contractor’s work absolved
the contractor from liability, the Court finds this distinction significant. In short, if UPRR removed
the bridge in 1997, it did so for its own benefit in its capacity as an occupier exercising control
over a property which it had the exclusive right to use for operation of its railroad tracks, not for
the benefit of TxDOT in the capacity of an independent contractor. UPRR’s Retained Trackage
Rights clearly gave it control over the premises in question until the end of 1997. Given UPRR’s
property interest under the Purchase Agreement, the mere fact that UPRR did not own the real
property on which the bridge was located does not transform it into an independent contractor that
can be held liable under Strakos.3 The Court therefore concludes that Plaintiffs’ claims sound in
premises liability, rather than ordinary negligence.
2 In support of their argument that Strakos governs, Plaintiffs also argue that UPRR, though not an
independent contractor, provided a benefit to TxDOT by removing its tracks, even if this benefit
was gratuitous and not directly intended by the parties. But this likewise understates the importance
of the Strakos defendant’s status as an independent contractor hired by the property owner. The
Strakos defendant had a duty arising out of its performance of its contractual obligations separate
from its duty as a controller of the premises that is not present here.
3 Plaintiffs cite to the Texas Court of Appeals’ decision in Arredondo v. Techserv Consulting &
Training, Ltd., which, relying on Strakos, applied ordinary negligence principles to a claim against
an independent contractor which was hired by a utility company to remove a utility pole and did
so negligently. 567 S.W.3d 383, 393 (Tex. App.—San Antonio 2018), rev’d in part, aff’d in part,
612 S.W.3d 289 (Tex. 2020). But like Strakos, this case involved an independent contractor hired
to perform specific work, not the holder of a right-of-way easement acting in its capacity as
easement holder. Indeed, UPRR is more aptly compared not to the contractor in Arredondo, but
rather to the utility company, which held a right of way easement on the property in question for
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This conclusion is consistent with other Texas case law regarding premises liability. For
example, in United Scaffolding, Inc. v. Levine, the Texas Supreme Court held that “a premises
defect claim against a contractor who retained the right to control the premises at the time of the
plaintiff’s alleged injury must be submitted to the jury as a premises liability claim,” rather than a
general negligence claim. 537 S.W.3d 463, 480 (Tex. 2017). The court explained that “a general
contractor that assumes control of or retains the right to control the premises is charged with the
same duty as an owner or occupier” and that “a defendant’s liability under a premises liability
theory rests on the defendant’s assumption of control of the premises and responsibility for
dangerous conditions on it.” Id. at 474 (internal citations omitted). The court noted that premises
liability “merely require[s] ‘sufficient control over the part of the premises that presented the
alleged danger so that the defendant has the responsibility to remedy it,’” it does not require
exclusive control over the premises. Id. at 479 (quoting Cty. of Cameron v. Brown, 80 S.W.3d 549,
556 (Tex. 2002). Notably, the court rejected the dissent’s contention that Strakos should control.
Id. at 478 n. 6. To the extent that this case is in tension with Strakos, the Court concludes that
United Scaffolding better represents the Texas Supreme Court’s current thinking, and in any event,
the Court declines to extend Strakos beyond its application to independent contractors.
V. 	CONCLUSION
For these reasons, the Court therefore GRANTS Defendant UPRR’s Motion for Summary
Judgment. All the available evidence suggests that if UPRR removed the bridge, it did so before
the purposes of operating its utility poles. Additionally, although the Texas Supreme Cout affirmed
the court of appeals’ judgment as to the contractor’s liability (while reversing other portions of the
decision), the supreme court “express[ed] no opinion” on the portion of the court of appeals’
analysis that dealt with the applicability of premises liability versus ordinary negligence, because
the appellant did not raise this argument in its petition for review. AEP Texas Cent. Co. v.
Arredondo, 612 S.W.3d 289, 293 (Tex. 2020).
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the end of 1997. The Court agrees with UPRR that, assuming the removal of the bridge occurred
before the expiration of UPRR’s Retained Trackage Rights, Plaintiffs’ claims against UPRR sound
in premises liability rather than ordinary negligence. And, Plaintiffs cannot succeed on a premises
liability claim against UPRR because UPRR was no longer in control of the property at the time
of Plaintiffs’ injuries. While the Court recognizes that this holding makes it more difficult for
Plaintiffs to seek redress for their injuries, the Court concludes that Plaintiffs’ claims against UPRR
are precluded by Texas law.
Because Plaintiffs cannot succeed on a negligence claim against UPRR, they likewise
cannot succeed on their claim for gross negligence. Summary judgment is therefore entered in
favor of Defendant.
IT IS SO ORDERED.
Signed at Houston, Texas on May 8, 2026.
_______________________________
Keith P. Ellison
United States District Judge
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