Court: District Court, D. South Dakota; March 4, 2012; Federal District Court
Plaintiff Tami Skrovig filed an amended complaint against BNSF Railway Company, alleging negligence resulting from a collision that caused her husband Thomas Skrovig's death. BNSF denied negligence and claimed that some negligence allegations are preempted by federal law and that Mr. Skrovig's contributory negligence was significant enough to bar recovery. BNSF moved for summary judgment and also sought to strike the affidavits of the plaintiff's expert witnesses as hearsay. The court found the motions ripe for resolution and ultimately denied both the motion to strike and the motion for summary judgment. The standard for summary judgment requires the moving party to demonstrate no genuine dispute of material fact exists, requiring the nonmoving party to provide specific evidence to the contrary. The court emphasized that only genuine disputes over material facts can prevent summary judgment and that all facts must be viewed favorably for the nonmoving party. In response to BNSF's objection to the expert reports, the plaintiff submitted sworn affidavits from the witnesses, addressing BNSF's hearsay claims.
FlexSol introduced unverified documents in DG. G, Inc. v. FlexSol Packaging Corporation, which were objected to by DG. G. FlexSol later submitted an affidavit to authenticate the documents, leading the district court to find them 'cured' for summary judgment. For documents to be considered at this stage, they must be authenticated via an affidavit or deposition under Fed. R. Civ. P. 56(e). The district court has discretion in accepting or rejecting late materials and did not abuse this discretion regarding the cured documents. BNSF acknowledged receiving witness reports on May 27, 2011, and addressed them in its reply brief. The court found no prejudice to BNSF in considering the reports and affidavits of witnesses Mr. Noyce and Mr. Edwards. BNSF's objection to the expert reports based on hearsay was denied, as Federal Rule of Evidence 703 allows experts to rely on otherwise inadmissible information.
The undisputed facts detail an incident on August 21, 2007, involving BNSF employee Dwight Wise operating a ballast regulator near a railroad crossing in Minnehaha County, South Dakota. As Wise approached the 465th Avenue Crossing, he tooted his horn while Mr. Skrovig, driving south, had an obstructed view due to corn growing nearby. The collision occurred when the ballast regulator struck Mr. Skrovig's vehicle, pushing it 50 feet; Mr. Skrovig died from this incident. He had frequently crossed this railroad intersection prior to the accident, typically driving at 40-45 miles per hour.
Mr. Wise, the sole surviving eyewitness to a collision at the 465th Avenue Crossing, initially estimated the speed of the ballast regulator at 10-15 miles per hour, later revising it to 5 miles per hour in his deposition. BNSF owned and maintained both the crossing and the ballast regulator, with Mr. Wise operating the ballast regulator as a BNSF employee at the time of the incident. The crossing, marked by operational cross-buck signs visible to southbound motorists, was established through a federally funded statewide program between 1988 and 1990.
BNSF seeks summary judgment, claiming federal preemption over the plaintiff’s negligence claims related to failure to warn, lack of a flagman at the crossing, and vegetation concerns. They argue that the Federal Railroad Safety Act (FRSA) preempts these claims under the supremacy clause of the U.S. Constitution, asserting that the FRSA aims to enhance railroad safety and minimize accidents. The FRSA mandates national uniformity in railroad safety regulations, allowing states to implement stricter laws only if they address local hazards without conflicting with federal regulations or hindering interstate commerce. However, it clarifies that state law claims can proceed if they allege non-compliance with federal standards or incompatible state regulations. Thus, federal law may supersede conflicting state statutes concerning railroad safety.
Legal duties of railroads under common law are analyzed in the context of federal regulations governing grade crossings, as established in CSX Transportation, Inc. v. Easterwood. In this case, the widow of a decedent sued CSX for negligence regarding inadequate warning devices and excessive train speed at a crossing under Georgia law. The court addressed whether federal regulations preempt state law concerning railroad operations at grade crossings. For preemption to be valid, CSX must demonstrate that federal regulations "cover" the state law subject matter, a stricter standard than merely "relating to" it.
The court found that although federal regulations concerning grade crossing warning devices were indeed applicable, the specific regulations had not been met since federal funds were not used for the installation of the device in question. Therefore, Mrs. Easterwood's claim regarding inadequate warning devices was allowed to proceed. However, her claim regarding the train's speed was preempted. The court noted that the federal provisions regarding train speeds were established with safety considerations in mind and effectively restricted additional state regulation. Consequently, the Supreme Court concluded that while the inadequate warning device claim could continue, the excessive speed claim could not, as the federal regulations covered that subject matter comprehensively. This decision was later clarified in the case of Norfolk Southern Railway Co. v. Shanklin.
In Shanklin, the court addressed a widow's claim that her husband's death resulted from the railroad company's failure to maintain adequate warning devices at a grade crossing. The Tennessee Department of Transportation had installed federally funded "RAILROAD CROSSING" signs, which met federal standards at the time of the accident. The court concluded that states cannot hold railroads responsible for the adequacy of federally funded warning devices, citing the Federal Railroad Safety Act (FRSA) as preempting state tort claims regarding these devices.
In the current case involving BNSF, the plaintiff's failure to warn claim relates to the "RAILROAD CROSSING" sign at the 465th Avenue Crossing where a collision occurred. The plaintiff does not argue that BNSF should have used alternative warning devices but claims that BNSF failed to follow its own policy for flagging crossings under hazardous conditions. Specific allegations include that BNSF should have warned the public of the approach of its Ballast Regulator and failed to provide adequate signals or warnings when operating the equipment. The plaintiff asserts BNSF breached its duty by neglecting to warn the public and not complying with internal safety rules, particularly Maintenance of Way Operating Rule (MWOR) 6.50.2. These negligence claims focus on the lack of warnings for the ballast regulator, rather than a failure to warn of an approaching train.
On-track equipment is required to approach grade crossings prepared to stop and yield to vehicular traffic, with the option to employ a flagger for safety (Docket 86-7). The BNSF Engineering Instructions mandate that roadway equipment must prepare to stop before grade crossings, utilize a flagger when traffic poses a hazard, and not depend on equipment to shunt the track, while also using a specific horn signal (Docket 82-2). The term "flagman" in federal regulations refers specifically to an employee designated to manage train movements for the safety of roadway workers (49 C.F.R. 214.7). Similarly, "watchman" or "lookout" is defined as a trained individual responsible for warning workers of approaching trains or equipment, equipped to provide adequate warnings (49 C.F.R. 214.7). The plaintiff cannot argue that BNSF had an obligation to post a watchman at the 465th Avenue Crossing for the ballast regulator incident, as there was no train involved. The terms "flagman" and "flagger" should be understood in their ordinary sense within this context. The Federal Railroad Administration (FRA) aims to enhance safety across railroad operations, while track safety standards set minimum requirements that apply to specific track conditions to ensure safe operations (49 C.F.R. 212.101(a) and 49 C.F.R. 213.1(a)). These regulations are applicable beyond railroad employees and serve to prevent collisions at grade crossings involving both motor vehicles and railroad maintenance equipment, emphasizing that they are not exhaustive safety measures.
Railroads and contractors are permitted to implement additional safety requirements beyond the federal regulations, provided they are consistent with existing standards. BNSF is mandated to maintain a specific safety program for on-track equipment, which must include provisions for the training and qualification of operators, safety procedures, and maximum operational speeds influenced by conditions such as weather and visibility. A crucial regulation stipulates that roadway workers must fully understand the safety instructions relevant to the machinery they operate. The overarching goal of these regulations is to prevent accidents involving on-track maintenance machines.
BNSF contends that violations of its internal rules do not constitute a negligence claim, as these rules are not recognized under federal statute 49 U.S.C. 20106(b)(1)(B). BNSF is required to establish internal safety rules in compliance with 49 C.F.R. 214.341, and in response to interrogatories, it produced several documents outlining its rules from 2007, including various safety and operating instructions. However, BNSF argues these rules were not developed pursuant to any regulation from the Secretary of Transportation, a point contested as lacking merit. BNSF did not present any other internal rules compliant with 214.341. Furthermore, BNSF asserts that the Federal Railroad Administration’s Final Rule clarifies that section 214 is not designed to address incidents involving maintenance equipment and motor vehicles, emphasizing that its safety rules are focused solely on the protection of its employees rather than the general public.
BNSF contends that its Model Work Operating Rules (MWOR) and Engineering Instructions are optional guidelines that can be modified as needed. However, the "Scope of the Rule" section of the Final Rule states that the Federal Railroad Administration (FRA) and the Advisory Committee did not address the hazards posed by vehicular traffic at grade crossings for roadway workers, suggesting the risk is minimal and that voluntary safety measures are sufficient. The MWOR and Engineering Rules are viewed as voluntary measures that align with federal regulations allowing railroads to implement additional safety rules. Federal requirements mandate that BNSF establish a safety program for on-track equipment operations, focusing on safe speeds influenced by environmental conditions.
BNSF's "Safety Vision" emphasizes the prevention of accidents and injuries through a strong safety culture, resources designed for safety, and employee training. MWOR 6.50.2 is recognized as a safety rule intended to protect both railroad employees and the public. Randy Miller, a BNSF foreman, testified that safety procedures dictate approaching crossings with caution. Testimony from Charlene Alverson regarding Miller's explanation of a collision incident is contested by BNSF as hearsay, yet it raises questions about Miller's actions at the crossing.
The court concludes that MWOR 6.50.2 and Engineering Rule 14.4.1 are company rules that are permissible under federal regulations and can support the plaintiff's state tort claim for negligence. Alternatively, these rules may fall under an exemption from federal preemption.
Pre-emption requires a "clear and manifest purpose of Congress" as established in case law. The defendant's motion for summary judgment regarding the plaintiff's failure to warn claim is denied due to factual uncertainties about BNSF employee Mr. Wise's adherence to BNSF rules and whether adequate warnings were given to Mr. Skrovig about the ballast regulator at the crossing. The plaintiff does not allege negligence for the failure to clear vegetation but claims that the ballast regulator operator failed to yield to vehicular traffic and maintain proper lookout before crossing. The visibility issues caused by adjacent cornfields are pertinent to this claim.
The Federal Railroad Administration (FRA) regulations stipulate that vegetation on railroad property must be controlled to prevent fire hazards, visibility obstructions for signs, and interference with employees' duties. However, the corn on the adjacent property does not fall under these regulations, which focus on the railbed area. The regulations require that railroad operators consider visibility when determining operational speed and that they adhere to maximum speed limits while accounting for conditions affecting safe operation. The defendant's reliance on past cases is not persuasive, as those involved train operations near cornfields, unlike the smaller ballast regulator involved in this incident.
Regulations for train operations are more detailed compared to those for on-track equipment, which are governed by the railroad’s own safety rules. The plaintiff asserts that Mr. Wise failed to uphold his duty of care, claiming visibility issues from a cornfield exacerbated this duty. The plaintiff also states that Mr. Wise received a reprimand for violating MWOR 6.50.2, while BNSF argues that he opted for a record suspension instead of an evidentiary hearing regarding the alleged violation. BNSF acknowledges that Mr. Wise did receive a reprimand in 2007. The question of whether BNSF or Mr. Wise violated operational rules regarding on-track equipment is a matter for the jury, thus preventing summary judgment on this claim.
Regarding contributory negligence, BNSF seeks summary judgment, arguing that Mr. Skrovig’s negligence exceeds a slight degree and constitutes both ordinary negligence and negligence per se by violating a safety statute without a legal excuse. Specifically, BNSF cites SDCL 32-25-13, which restricts speed near obstructed grade crossings to 15 miles per hour. This statute defines an obstructed view as lacking clear visibility of the railway for 400 feet in either direction within the last 200 feet of approach. Violation of this safety statute is considered negligence unless legally excused, as established by South Dakota case law, which identifies four potential excuses for noncompliance.
The facts indicate that corn obstructed Mr. Skrovig's view as he approached the crossing; however, there is a dispute regarding his speed. The defendant's expert claims he was traveling over 15 miles per hour, possibly around 30 mph, while the plaintiff’s expert suggests a similar speed differential if the ballast regulator was moving at 10 mph, inferring Mr. Skrovig’s speed was also approximately 30 mph.
If Mr. Wise's revised testimony is credible, indicating the ballast regulator was operating at 5 miles per hour, a 3:1 speed ratio would result in Mr. Skrovig's pickup traveling at 15 miles per hour. Determining credibility is the jury's responsibility, as established in Baddou v. Hall. Questions of negligence, contributory negligence, and proximate cause are generally factual issues, requiring a clear case for a judge to remove them from the jury's consideration. Even if negligence is found on Mr. Skrovig's part, it must be compared to the defendant's negligence, per SDCL 20-9-2, which allows for recovery if the plaintiff's contributory negligence is slight compared to the defendant's. The term "slight" is defined as a small amount relative to the defendant's negligence, with the determination varying by case specifics. Consequently, the defendant's motion for summary judgment, based on claims of Mr. Skrovig's negligence per se or contributory negligence, is denied. The orders also include the denial of the defendant's motion to strike and objection to affidavits, as well as the summary judgment motion. Additional context reveals that the ballast regulator's specifications and Mr. Skrovig's vehicle details were noted, along with an observation about the height of corn at the incident scene. A noted deficiency regarding retroreflective material on a relevant crossbuck support was deemed not materially impactful on the case outcome.
BNSF does not claim that preemption affects the plaintiff's allegations regarding horn-blowing, the ballast regulator's speed, Mr. Wise's failure to slow down or stop the ballast regulator before the crossing, or his inability to maintain control and proper lookout to prevent the collision. The Federal Railroad Safety Act (FRSA) grants the Secretary of Homeland Security the authority to create regulations concerning railroad security, but these matters are not pertinent to the current case, leading to the redaction of references to the Secretary. The Federal Railroad Administration (FRA) has indicated that a general requirement for on-track safety surrounding roadway maintenance machines is more effective, with specific details to be managed by railroad management in collaboration with employees and suppliers. Some railroads have developed comprehensive rules for various machine types, which the FRA supports as exemplary. The FRA notes that on-track safety procedures can be general but should include specific requirements for particular machine types when necessary. BNSF references the case Grade v. BNSF Railway Co., asserting that the plaintiff's claim regarding the absence of a flagman at a crossing is preempted by the FRSA. In that case, the court determined that the relevant rule was not established under any regulation or order from the Secretary of Transportation.
