Case: 23-20139 Document: 00517061989 Page: 1 Date Filed: 02/09/2024

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

____________ FILED February 9, 2024 No. 23-20139 Lyle W. Cayce ____________ Clerk Javier Tapia, Individually and as Personal Representative of the Estate of A.W.T.; Jennifer Welborn, Plaintiffs—Appellants, versus Union Pacific Railroad Company, Defendant—Appellee. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC No. 4:23-CV-42 ______________________________ Before King, Jones, and Oldham, Circuit Judges.

Per Curiam:* Avery Tapia was hit and killed by a Union Pacific train while on a railroad-only bridge in Houston’s Memorial Park. Following the accident, Avery’s parents sued Union Pacific in state court for negligence and gross negligence. Union Pacific removed to federal court and moved for summary _____________________ * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

Case: 23-20139 Document: 00517061989 Page: 2 Date Filed: 02/09/2024

No. 23-20139

judgment, arguing that it did not proximately cause Avery’s death, did not owe Avery a duty of ordinary care, and did not breach any such duty.

Without addressing the elements of duty or breach, the district court determined that proximate cause was lacking and granted summary judgment in favor of Union Pacific. The support for the district court’s decision on proximate cause came almost exclusively from the dissenting opinion in Missouri, Kansas & Texas Railway Co. v. Riddle, 277 S.W. 164, 166 (Tex. App.—Waco 1925, writ ref’d). Irrespective of the ultimate outcome in this case, for this reason, we cannot say that the district court’s order granting summary judgment was free of error.

The judgment of the district court is VACATED, and the case is REMANDED for further proceedings.