The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
Plaintiff Tami Skrovig ("plaintiff" or "Mrs. Skrovig") filed an amended complaint asserting various claims of negligence against defendant BNSF Railway Company ("BNSF") arising from a pickup and railroad maintenance machine collision in which her husband, Thomas Skrovig ("Mr. Skrovig"), died. (Docket 37). Defendant's answer denies plaintiff is entitled to recovery, asserting BNSF was not negligent; some, if not all, of plaintiff's negligence claims are preempted by federal law; and if BNSF was negligent, Mr. Skrovig was negligent as a matter of law and his contributory negligence was greater than slight thereby barring recovery. (Docket 38). Defendant filed a motion for summary judgment. (Docket 76). Defendant also filed a motion to strike and objection to the affidavits of plaintiff's expert witnesses. (Docket 95). Briefing on the motions is complete and the matters are ripe for resolution by the court. For the reasons stated below, defendant's motion to strike, objection to affidavits, and defendant's motion for summary judgment are denied.
A party is entitled to summary judgment if the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Once the moving party has met its burden, the nonmoving party may not rest on the allegations or denials in the pleadings, but rather must produce affirmative evidence setting forth specific facts showing a genuine issue of material fact exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Id. at 248. Accordingly, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party, then summary judgment is not appropriate. Id. However, the moving party is entitled to judgment as a matter of law if the nonmoving party failed to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In such a case, "there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.
In determining whether summary judgment should issue, the facts and inferences from those facts must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986). The key inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52. "A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party; a fact is material if its resolution affects the outcome of the case." Mayer v. Countrywide Home Loans, 647 F.3d 789, 791 (8th Cir. 2011) (citing Anderson, 477 U.S. at 252).
DEFENDANT'S MOTION TO STRIKE AFFIDAVITS
In response to defendant's motion for summary judgment, plaintiff submitted two expert witness reports. (Dockets 86-2 & 86-6). Plaintiff asserts these reports create genuine issues of material fact which defeat defendant's entitlement to summary judgment as a matter of law. BNSF's reply memorandum objected to the submission of these documents as unsworn hearsay in violation of Fed. R. Evid. 801(c) and 802. (Docket 91 at pp. 25-26). Plaintiff then submitted sworn affidavits from the two witnesses, with the original reports attached. (Dockets 93, 93-2, 94 & 94-2).
This scenario is exactly the same situation which occurred in DG & G, Inc. v. Flexsol Packaging Corporation of Pompano Beach, 576 F.3d 820 (8th Cir. 2009). "FlexSol introduced unverified documents into the record. DG&G objected. FlexSol later provided [the witness'] affidavit verifying his reports, and the district court found that the documents were 'cured' for summary judgment." Id. at 825. "To be considered on summary judgment, documents must be authenticated by and attached to an affidavit made on personal knowledge setting forth such facts as would be admissible in evidence or a deposition that meets the requirements of Fed. R. Civ. P. 56(e)." Id. at 825-26 (citing Shanklin v. Fitzgerald, 397 F.3d 596, 602 (8th Cir. 2005) (internal quotations omitted)). "The district court has discretion whether to accept or reject such untimely filed materials." Id. at 826 (internal citations omitted). "[S]ubsequent verification or reaffirmation of an unsworn expert's report, either by affidavit or deposition, allows the court to consider the . . . unsworn expert's report on a motion for summary judgment." Id. "[T]he district court did not abuse its discretion in considering the cured documents." Id. at 826.
BNSF does not dispute the witnesses' reports were served on it on May 27, 2011. BNSF specifically addressed the contents of these reports in its reply brief. (Docket 91 at pp. 25-26). The court finds no prejudice to BNSF by the consideration of the reports and the affidavits of the witnesses, Mr. Noyce and Mr. Edwards. (Dockets 93, 93-2, 94 & 94-2). BNSF objects to the expert reports as containing or relying upon hearsay. Federal Rule of Evidence 703 permits an expert to form opinions based upon information which itself is inadmissible but which is of a type reasonably relied upon in the expert's field. Defendant's motion to strike and objection to the affidavits (Docket 95) is denied.
STATEMENT OF UNDISPUTED MATERIAL FACTS
The undisputed material facts are gathered from plaintiff's amended complaint (Docket 37), defendant's answers to the amended complaint*fn1 (Docket 38), defendant's statement of undisputed facts (Docket 77, pp. 2-4), and plaintiff's response to defendant's statement of undisputed material facts.*fn2 (Docket 85, p. 2). Other citations to the record will be made where appropriate.
On the bright, clear summer day August 21, 2007, at around 11 a.m., BNSF employee Dwight Wise operated a piece of railway maintenance equipment, specifically a Kershaw Ballast Regulator ("ballast regulator"),*fn3 on a railroad track in rural Minnehaha County, South Dakota. (Docket 77, p. 2, ¶ 1). Mr. Wise left Sioux Falls, South Dakota, with the ballast regulator on the rails the morning of August 21, 2007, and was en route to Wentworth, South Dakota, to work on a crossing. Id.
As the ballast regulator neared the railroad track's intersection with 465th Avenue (the "465th Avenue Crossing" or "railroad crossing") heading west, Mr. Wise "tooted his horn." (Dockets 77, p. 2, ¶ 2 & 85, p. 2, ¶ 2). At this same time, Mr. Skrovig was driving his vehicle*fn4 south on 465th Avenue toward the 465th Avenue Crossing. (Docket 77, p. 2, ¶ 3). During the last 200 feet of Mr. Skrovig's approach to the railroad crossing, corn growing on the northeast quadrant of the crossing*fn5 would have prevented him from having a clear, uninterrupted view of the ballast regulator during the last 400 feet of the ballast regulator's approach to the 465th Avenue Crossing. Id. at ¶ 4. Mr. Skrovig's view was obstructed as he approached the railroad crossing where his pickup collided with the ballast regulator. Id. at ¶¶ 5 & 10. The ballast regulator struck Mr. Skrovig's pickup on the driver's side and pushed the vehicle approximately 50 feet in a westerly direction along the railroad tracks. (Docket 85, p. 3). Mr. Skrovig died as a result of the collision. Id.
Mr. Skrovig had driven over the 465th Avenue Crossing multiple times. In the eight weeks prior to his death, he drove over the railroad crossing on average once per week because he was contracted to build a house in the area. (Docket 77 at p. 3, ¶ 6). Mrs. Skrovig testified that Mr. Skrovig's typical speed going over the railroad crossing, traveling north to south, was probably 40-45 miles per hour. Id. at ¶ 7.
Mr. Wise, the only surviving eyewitness to the collision, testified Mr. Skrovig was driving approximately 30 miles per hour as his vehicle approached the 465th Avenue Crossing. Id. at ¶ 8. Mr. Wise initially reported to a law enforcement officer the speed of the ballast regulator was between 10-15 miles per hour at the time of collision. (Docket 85, p. 2, ¶ 2). In his deposition, Mr. Wise changed his speed estimate to 5 miles per hour. Id.
The 465th Avenue Crossing where the collision occurred was owned, operated and maintained by BNSF. (Docket 37, ¶ 9). The ballast regulator involved in the collision was owned, operated and maintained by BNSF. Id. at ¶ 10. Mr. Wise, as the operator of the ballast regulator, was an employee of BNSF acting within the course and scope of his employment at the time of the collision. Id. at ¶ 11. The railroad crossing, which is identified as DOT No. 097327S, was marked by crossbuck signs which were present and operational at the time of the collision and were not obscured by any objects or vegetation. (Docket 77 at p. 3, ¶ 11). The crossbuck sign facing southbound motorists had reflective material on both the front and back of the sign face (the part of the crossbuck that forms an "x" and marked with the words "railroad crossing").*fn6 Id.; see also Docket 79-1. The crossbuck signs for this crossing were installed as part of a statewide program initiated and completed between 1988 and 1990 using federal funds. (Docket 77 at p. 4, ¶ 12).
BNSF moves for summary judgment asserting federal preemption on plaintiff's claims of (1) failure to warn; (2) failure to post a flagman at the crossing; and (3) claims relating to vegetation at or immediately adjacent to the railroad roadbed.*fn7 (Docket 91 at p. 4). BNSF also moved for summary judgment asserting Mr. Skrovig's contributory negligence was greater than slight barring any recovery against defendant. Id.
BNSF argues the Federal Railroad Safety Act of 1970 ("FRSA"),
49 U.S.C. § 20101 et seq., under the supremacy clause of the United States Constitution, Article VI, cl. 2, preempts plaintiff's negligence claims. (Docket 77 at p. 6). "The purpose of [FRSA] is to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. Preemption is specifically addressed in the FRSA:
(a) National uniformity of regulation.--(1) Laws, regulations, and orders related to railroad safety and laws, regulations, and orders related to railroad security shall be nationally uniform to the extent practicable.
(2) A State may adopt or continue in force a law, regulation, or order
related to railroad safety or security until the Secretary of
Transportation (with respect to railroad safety matters)*fn8
. . . prescribes a regulation or issues an order covering the
subject matter of the State requirement. A State may adopt or continue
in force an additional or more stringent law, regulation, or order
related to railroad safety or security when the law, regulation, or
(A) is necessary to eliminate or reduce an essentially local safety or security hazard;
(B) is not incompatible with a law, regulation, or order of the United States Government; and
(C) does not unreasonably burden interstate commerce.
(b) Clarification regarding State law causes of action.--(1) Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party--
(A) has failed to comply with the Federal standard of care established by a regulation or order issued by the Secretary of Transportation (with respect to railroad safety matters) . . . covering the subject matter as provided in subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or standard that it created pursuant to a regulation or order issued by . . . the Secretar[y]; or
(C) has failed to comply with a State law, regulation, or order that is not incompatible with subsection (a)(2). . . .
49 U.S.C. § 20106. "Where a state statute conflicts with, or frustrates, federal law, the former must give way. . . . applicable federal regulations may pre-empt any state law, rule, regulation, order, or standard relating to railroad safety. Legal duties imposed on railroads by the common law fall within the scope of these broad phrases." CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 663-64 (1993) (internal citation and quotation marks omitted).
In Easterwood, decedent's widow sued CSX for negligence "under Georgia law for failing to maintain adequate warning devices at the crossing and for operating the train at an excessive speed." Id. at 661. The issue before the court was "whether the Secretary of Transportation has issued regulations covering the same subject matter as Georgia negligence law pertaining to the maintenance of, and the operation of trains at, grade crossings." Id. at 664. "To prevail on the claim that the regulations have pre-emptive effect, [CSX] must establish more than that they 'touch upon' or 'relate to' that subject matter . . . 'covering' is a more restrictive term which indicates that pre-emption will lie only if the federal regulations substantially subsume the subject matter of the relevant state law." Id. (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84 (1992) (statute's use of "relating to" confers broad pre-emptive effect). "The term 'covering' is in turn employed within a provision that displays considerable solicitude for state law in that its express pre-emption clause is both prefaced and succeeded by express saving clauses." Id. at 665 (internal citation omitted).
Under regulations relating to grade crossing warning devices, the Easterwood court concluded "for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. The Secretary's regulations therefore cover the subject matter of state law which, like the tort law on which [Mrs. Easterwood] relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings." Id. at 671. However, in Easterwood, the preconditions to the application of the regulations had not been met. Since the plan for installation of the device was deferred, federal funds were not used to actually construct the crossing warning device. The Easterwood court concluded the "facts do not establish that federal funds 'participated in the installation of the warning devices' at [the crossing in question]." Id. at 672 (internal brackets deleted). Because the particular regulation relating to the warning device had not been complied with, the court "conclude[d] that [Mrs. Easterwood's] grade crossing claim is not pre-empted." Id. at 673.
The same conclusion was not reached, however, on Mrs. Easterwood's claim the train was speeding and CSX "breached its common-law duty to operate its train at a moderate and safe rate of speed." Id. "On their face, the provisions [in question] address only the maximum speeds at which trains are permitted to travel given the nature of the track on which they operate. Nevertheless, related safety regulations adopted by the Secretary reveal that the limits were adopted only after the hazards posed by track conditions were taken into account. Understood in the context of the overall structure of the regulations, the speed limits must be read as not only establishing a ceiling, but also precluding additional state regulation of the sort that [Mrs. Easterwood] seeks to impose on [CSX]." Id. at 674. Because the regulation "should be understood as covering the subject matter of train speed with respect to track conditions, including the conditions posed by grade crossings. . . . [the Supreme Court] conclude[d] that [Mrs. Easterwood's] excessive speed claim cannot stand . . . . under the FRSA, federal regulations adopted by the Secretary of Transportation pre-empt [her] negligence action only insofar as it asserts that [CSX's] train was traveling at an excessive speed." Id. at 675-76. In the end, the Easterwood court allowed Mrs. Easterwood's claim of an inadequate warning device to continue (not because a federal regulation did not cover warning devices, but because the crossing device was never installed), while her claim of excessive train speed was preempted.
The Supreme Court's ruling in Easterwood was further clarified in Norfolk Southern Railway Co. v. Shanklin, 529 U.S. 344 (2000). In Shanklin, the court was again faced with a widow's claim her husband's death was caused by the failure of the railroad company to "maintain adequate warning devices at a grade crossing . . . ." Id. at 347. The Tennessee Department of Transportation installed "the familiar black-and-white, X-shaped signs that read 'RAILROAD CROSSING,' " using federal funds. Id. at 350. "It is undisputed that the signs at the . . . crossing were installed and fully compliant with the federal standards for such devices at the time of the accident." Id. After revisiting the analysis used in Easterwood, the Shanklin court declared, "[w]hat States cannot do--once they have installed federally funded devices at a particular crossing--is hold the railroad responsible for the adequacy of those devices." Id. at 358. In conclusion, the Shanklin court found:
[The federal regulations] "cover the subject matter" of the adequacy of warning devices installed with the participation of federal funds. As a result, the FRSA pre-empts [Mrs. Shanklin's] state tort claim that the advance warning signs and reflectorized crossbucks installed at the . . . crossing were inadequate. . . . Once the FHWA [Federal Highway Administration] approved the project and the signs were installed using federal funds, the federal standard for adequacy displaced Tennessee statutory and common law addressing the same subject, thereby pre-empting [Mrs. Shanklin's] claim.
BNSF interprets plaintiff's complaint to include a claim relating to the crossbuck "RAILROAD CROSSING" sign located at the 465th Avenue Crossing where the collision occurred. (Docket 77 at pp. 9-14). Plaintiff does not allege BNSF should have had an alternative warning sign or device, as contemplated by federal regulations, at the 465th Avenue Crossing. "Plaintiff has not asserted a claim that BNSF had a duty to construct a different or more advanced warning system at the crossing . . . ." (Docket 85 at p. 11). Plaintiff's failure to warn claim is "that BNSF failed to act in compliance with its own policy of ...