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Skrovig v. BNSF Railway Co.

United States District Court, D. South Dakota, Southern Division

January 16, 2013

Tami SKROVIG, as Personal Representative of the Estate of Thomas Jeffrey Skrovig, deceased, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

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Edwin E. Evans, Mark William Haigh, Shane E. Eden, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD, for Plaintiff.

Thomas C. Sattler, Nichole S. Bogen, Wolfe, Snowden, Hurd, Luers & Ahl, LLP, Lincoln, NE, for Defendant.

ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL

JEFFREY L. VIKEN, Chief Judge.

INTRODUCTION

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). The case was tried to a jury on April 23, 2012, through May 2, 2012. On May 2, 2012, the jury entered a verdict of $2,000,000 in favor of plaintiff and against defendant. (Docket 192). The court entered a judgment on that same day in favor of plaintiff. (Docket 193). An

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amended judgment including prejudgment interest was filed on June 28, 2012, 2012 WL 2505749. (Docket 217).

Defendant timely filed a motion to set aside the verdict and for judgment as a matter of law in favor of BNSF under Fed.R.Civ.P. 50(b)[1] or, in the alternative, a motion for new trial under Fed.R.Civ.P. 59. (Docket 211). Plaintiff resists the motion in its entirety. (Docket 216). For the reasons set forth below, defendant's motions are denied.

DISCUSSION

A. MOTION FOR JUDGMENT AS A MATTER OF LAW

Defendant asserts a number of grounds upon which it argues BNSF is entitled to judgment as a matter of law. Those grounds are summarized as:

1. Plaintiff's " failure to warn" claims are preempted under federal law;
2. Plaintiff's " failure to yield" claims are preempted under federal law;
3. Defendant's internal company rules do not establish a federal standard of care; and
4. Defendant's internal company rules do not establish a standard of care under South Dakota Law.

(Docket 212 at pp. 8-16). The first three claims are legal issues and the fourth has both a legal and factual component. Each claim will be addressed separately.

1. PLAINTIFF'S " FAILURE TO WARN" CLAIMS ARE PREEMPTED UNDER FEDERAL LAW

BNSF argues one of plaintiff's claims presented to the jury was a " failure to warn" claim relating to the crossbuck " RAILROAD CROSSING" sign located at the 465th Avenue Crossing where the collision occurred. See Docket 212 at p. 9. " Plaintiff [never] 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). The court granted BNSF's pretrial motions in limine relating to evidence regarding the crossbuck signs. (Docket 167 at p. 4, ¶¶ 20 & 33, p. 7, ¶¶ 8, 9, 10, 11, 12, 13, & 14). Plaintiff never offered evidence, nor did the jury ever consider evidence, regarding inadequacy of the crossbuck sign or an associated " failure to warn" claim. Defendant's argument regarding the crossbuck sign is without merit.

The only " failure to warn" claim which plaintiff presented at trial and upon which the jury heard evidence was a " failure to warn" claim arising out of BNSF's internal rules. Those BNSF rules were Maintenance of Way Operating Rule 6.50.2 (" MOWOR 6.50.2" ) (trial exhibit 6 and 6A) and Engineering Rule 14.4.1 (" Eng. R. 14.4.1" ) (trial exhibit 9 and 9A) (collectively " BNSF internal rules" ). The " failure to warn" claim involved evidence those rules required a flagger at the railroad crossing in advance of the arrival of the ballast regulator to warn any approaching vehicular traffic (the " flagging claim" ).

After an extensive hearing on the federal preemption issue outside the presence of the jury (Docket 186) and after considering defendant's motion for judgment as a matter of law at the close of plaintiff's case, the court granted defendant's motion and removed the " failure to warn" flagging claim from the jury's consideration. (Docket 204 at pp. 32-34). The court then required

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the redaction of MOWOR 6.50.2 and Eng. R. 14.4.1 to remove any duty to warn language. Id. at pp. 33-35. The court also gave the jury a curative instruction, consistent with those rulings.

Plaintiff's claim that Defendant failed to properly flag the crossing before the ballast regulator entered the crossing is no longer part of this case. So you will not decide that claim. You should not concern yourselves why this claim is not part of the case. You should decide the case based solely on the evidence on the remaining claims before you.

Id. at p. 49.

Defendant's argument regarding claims of " failure to warn" are without merit and its motion for judgment as a matter of law on this basis is denied.

2. PLAINTIFF'S " FAILURE TO YIELD" CLAIMS ARE PREEMPTED UNDER FEDERAL LAW

Defendant argues plaintiff's " failure to yield" claims arising out of MOWOR 6.50.2 and Eng. R. 14.4.1 cannot be the basis of a claim because " [t]he Federal Railroad Administration (" FRA" ) has promulgated federal regulations that substantially subsume the subject matter of the movement and safety of on-track railroad maintenance equipment." (Docket 212 at p. 10) (referencing 49 C.F.R. Part 214). BNSF argues " [t]he FRA considered and rejected a proposal to promulgate additional regulations to protect railroad workers from accidents with vehicle traffic at highway-rail grade crossings." Id. (referencing footnote 6— trial exhibit 821— FRA Final Rule 61 FR 65959,1996 WL 7160808 (Dec. 16, 1996) at pp. 4-5, 28 and 32). " Where the FRA determines that a particular regulation is not justified, that determination has the same preemptive effect as the adoption of a regulation." Id. at n. 6. At the motion for judgment as a matter of law hearing at the close of plaintiff's case-in-chief, BNSF counsel described this as " negative preemption." (Docket 204 at p. 5).

During the federal preemption hearing, Arthur Charrow, BNSF General Director of Maintenance Planning, testified the BNSF internal rules were " not covered by federal regulations." (Docket 186 at p. 70). Mr. Charrow acknowledged BNSF internal rules were in existence before there was a FRA. Id. at pp. 14-17. He also acknowledged that when Part 214 of the Code of Federal Regulations Title 49 was published, rules for protecting the traveling public at railroad grade crossings were outside the scope of the FRA. Id. at p. 18. During that same hearing, counsel for BNSF acknowledged the BNSF internal rules were not subject to a federal preemption analysis:

THE COURT: So is Plaintiff's claim that 6.50.2 was violated by Mr. Wise's failure to yield— forget the flagging issue, just the failure to yield— is that a claim that's preempted? Plaintiff's claim, first sentence says 6.50.2, Wise's failure to yield with the ballast regulator, is that preempted?
MR. SATTLER: Without having the flagger piece—
THE COURT: Just forget the flagger for a moment.
MR. SATTLER: I think it's vulnerable under state law. I don't think it's— I don't think it's a federal preemption related issue.
THE COURT: It survives the preemption analysis? And I'm not trying to play cute with your position. I'm trying to understand it.
MR. SATTLER: If it's segregated from the flagging.

Id. at p. 49 (emphasis added).

Mr. Charrow then put the federal preemption claim to rest regarding the BNSF internal rules.

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Q What about the duty of an operator to be prepared to stop or yield ... to vehicular traffic, is there any federal regulations that govern that for ballast regulators or maintenance vehicles?
A That's our regulations, [sic] not federal.
Q Pardon?
A Those are our regulations, not federal, our rules.

Id. at p. 71 (emphasis added).

Counsel for BNSF reconfirmed this conclusion during the motion for judgment as a matter of law hearing at the close of plaintiff's case-in-chief.

THE COURT: On the flagging issue. If you excise the final sentence of 6.50.2 that has the word " flag" in it.
MR. SATTLER: My argument— and I think I conceded this last time we spoke about this, Judge— my position is that if that last sentence comes out, that takes care of the— I'm just talking about the preemption issue....
....
THE COURT: If that's excised [flagging language] from 6.50.2, and the first sentence of that operating rule, on-track equipment must approach all grade crossings prepared to stop and must yield the right of way to vehicular traffic, that's not subject to preemption?
MR. SATTLER: As I said before, my argument would be that it isn't.
THE COURT: It's not preempted?
MR. SATTLER: It is not....
....
THE COURT: And if excised [the flagging language] from 14.4.1, if that's— that is taken away from the jury, the balance of this Engineering Instruction is not subject to preemption?
MR. SATTLER: With the other cautionary language I use without having to repeat it, I agree.

(Docket 204 at pp. 19 & 21-22) (emphasis added).

Based on the extensive federal preemption hearing and the discussion with counsel, the court concluded the duty to yield provisions of the BNSF internal rules were not subject to federal preemption. The court further ruled under Grade v. BNSF Railway Company, 676 F.3d 680 (8th Cir.2012), plaintiff's " failure to flag" claims were " preempted as a claim that constitutes an argument that there should have been an active signal or warning at the crossing...." (Docket 204 at p. 33). The court holds these rulings were sound and are proper legal conclusions in light of the evidence and arguments presented.[2]

There are two additional reasons why BNSF's challenge of federal preemption fails. First, " judicial admissions are binding for the purpose of the case in which the admissions are made including appeals." State Farm Mutual Automobile Insuance Co. v. Worthington, 405 F.2d 683, 686 (8th Cir.1968). " A judicial admission has been held to be conclusive on the party by whom it was made, or to whom it is attributable." Wiget v. Becker, 84 F.2d 706, 711 (8th Cir.1936). " A judicial admission trumps evidence." Murrey v. United States, 73 F.3d 1448, 1455 (7th Cir.1996).

Second, having agreed with the court during the course of trial that federal preemption does not apply to BNSF's

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internal rules, defendant cannot make a contrary claim post-trial. If the court erred in allowing BNSF internal rules to be used to evaluate the negligence, if any, of the defendant, BNSF is barred from now raising this argument in its post-trial motions. " The doctrine of invited error applies when the trial court announces its intention to embark on a specific course of action and defense counsel specifically approves of that course of action." Matthew v. Unum Life Insurance Company of America, 639 F.3d 857, 868 (8th Cir.2011) (internal quotation marks omitted). " Under the invited error doctrine, [a]n erroneous ruling generally does not constitute reversible error when it is invited by the same party who seeks on appeal to have the ruling overturned." Id. (internal quotation marks omitted). See also Federal Crop Ins. Corp. v. Hester, 765 F.2d 723, 727 (8th Cir.1985) (" It is fundamental that where the defendant ... invited error there can be no reversible error." ) (internal quotation marks omitted).

Defendant's argument regarding claims of " failure to yield" are without merit and its motion for judgment as a matter of law on this basis is denied.

3. DEFENDANT'S INTERNAL COMPANY RULES DO NOT ESTABLISH A FEDERAL STANDARD OF CARE

Defendant argues the court used BNSF internal rules to " establish a federal standard of care under the FRSA." (Docket 212 at p. 13). For defendant's argument to have merit, there must exist a federal regulation which creates an " ongoing, federal standard of care .... under which [the] railroad is expected to act[.]" Grade, 676 F.3d at 686. Defendant agreed the BNSF internal rules were not promulgated under the direction or requirement of the FRA. It is clear from the testimony of Mr. Charrow BNSF internal rules were " not covered by federal regulations." (Docket 186 at p. 70).

The court never ruled BNSF internal rules were being used to create a federal standard of care. " [T]his is not a case where Plaintiff on her surviving claims is challenging BNSF under a federal standard of care." (Docket 204 at p. 8). BNSF internal rules were presented to the jury for their consideration in determining defendant's negligence under South Dakota common law. See final instructions to the jury (Docket 189).

Defendant's argument is without merit and its motion for judgment as a matter of law ...


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