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Stock v. BNSF Railway Co.

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

August 31, 2016

JENNIFER LYNN STOCK, Plaintiff,
v.
BNSF RAILWAY COMPANY, A DELAWARE CORPORATION, Defendant.

          OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.

         Plaintiff Jennifer Lynn Stock (Stock) sued BNSF Railway Company (BNSF) after the vehicle she was driving collided with a train parked and blocking a road at a railroad crossing. She alleged that BNSF was negligent by violating federal regulations and internal rules concerning train operations. Although a train blocking a road at night is a clear safety concern, this Court must follow existing precedent to grant summary judgment to BNSF.

         I. Facts

         The accident in this case occurred in rural Yankton County, South Dakota near railroad tracks called the NAPA Junction. Doc. 62 at ¶ 1; Doc. 83 at ¶ 1. At the NAPA Junction, a "wye" railroad track configuration connects BNSF's main line to storage track owned and maintained by Dakota Southern Railway Company (DSRC). Doc. 70-1; Doc. 87 at ¶¶ 3-5; Doc. 87-1 at 4; Doc. 88-2 at 6-7.[1] The wye forms a rough right triangle with the BNSF main line as the hypotenuse and the DSRC tracks as the legs. Doc. 87 at ¶¶ 3-5; Doc. 87-1 at 4; Doc. 88-2 at 6-7. The legs of the wye eventually merge into a single DSRC track running to the west of the BNSF main line. Doc. 87 at ¶¶ 3-5; Doc. 87-1 at 4; Doc. 88 at 6-7. The DSRC storage tracks, including the legs of the wye and the single track running west of the BNSF main line, are commonly referred to as the "NAPA line." Doc. 87 at ¶¶ 3-5; Doc. 87-1 at 4; Doc. 88-2 at 6-7.

         Early in the morning on August 2, 2012, the train crew on BNSF train B-NAPWSP-1-01 (the train) traveled to the NAPA Junction to pick up railcars. Doc. 62 at ¶ 1; Doc. 83 at ¶ 1. Picking up railcars is a process known as "switching." Doc. 62 at ¶ 2; Doc. 83 at ¶ 2. Switching requires railroad employees to couple or connect the railcars to the train. Doc. 62 at ¶ 2; Doc. 83 at ¶ 2. When a railroad employee couples railcars to the train, the employee connects the air line between the existing train and then removes or releases the handbrakes from the railcars. Doc. 62 at ¶ 2; Doc. 83 at ¶ 2. Thereafter, the employee must conduct federally-mandated air brake tests on each railcar. Doc. 62 at ¶ 2; Doc. 83 at ¶ 2. A brake test typically requires an employee to walk along both sides of each railcar. 49 C.F.R. § 232.205(c)(2); Doc. 85-15 at 10; Doc. 85-16atl.

         The railcars the crew picked up were on the NAPA line. Doc. 62 at ¶ 3; Doc. 83 at ¶ 3; ASMF[2] at ¶ 9; Doc. 86 at 11. Because of the terrain and vegetation alongside the NAPA line, the train crew determined that it would be safer and more convenient to perform the brake test on BNSF's main line. ASMF at ¶ 6; Doc. 85-13 at 1; Doc. 85-15 at 1; Doc. 88-2 at 5.[3] Thus, once the railcars were coupled, the train crew pulled the train through the north leg of the wye and onto BNSF's main line for a distance necessary for the entire length of the train to clear the north wye switch. Doc. 62 at ¶¶ 3, 8; Doc. 83 at ¶ 3, 8. When the train stopped so the crew could perform the brake test, the train was blocking 306th Street in rural Yankton County at railroad crossing DOT No. 382269H (the crossing), which is located northwest of the NAPA Junction. Doc. 62 at ¶¶4, 9; Doc. 83 at ¶¶ 4, 9; ASMF ¶ 4; Doc. 88-2 at 6. A BNSF employee testified that the crew planned to back the train up off the crossing to perform the test.[4] Doc. 85-15 at 2; Doc. 88-2 at 4. Approximately one minute after the train came to a complete stop, however, Stock, who was driving her car eastbound on 306th street, drove into a railcar blocking the crossing. Doc. 62 at ¶¶ 10, 13; Doc. 83 at ¶¶ 10, 13. The accident occurred at around 4:56 a.m. Doc. 62 at ¶ 10; Doc. 83 at ¶ 10. Stock suffered injuries, including broken ribs and a broken leg. Doc. 85-12 at 1.

         Stock sued BNSF, claiming they were negligent by:

a. failing to keep it's [sic] train under reasonable and proper control by stopping and parking a flatbed car spanning [the crossing] on rural 306thStreet in Yankton County, South Dakota, under cover of darkness without need for such stoppage;
b. failing to sound the train's horn prior to entering thecrossing in the manner required under federal law;
c. failing to properly mark the flatbed car spanning the crossing with reflective material, or otherwise mark the car, in the manner required under federal law;
d. failing - to the extent that BNSF stopped the train with the flatbed car occupying the crossing to check the train's braking system - to comply with federal law and/or regulations, internally formulated regulations required by federal law, and/or internal BNSF policy dealing with such a stoppage;
e. failing - to the extent that BNSF stopped the train with the flatbed car occupying the crossing to conduct a crew change, rotation, or other employee-related activity - to comply with federal law and/or regulations, internally formulated regulations required by federal law, and/or internal BNSF policy dealing with such a stoppage.

Doc. 7 at ¶ 12.

         BNSF moved for summary judgment on all of Stock's claims, arguing that the Federal Railroad Safety Act (FRSA) preempted Stock's blocked crossing claim, her inadequate warning device claim, and her reflectorization claim; that her horn claim failed as a matter of law; and that the "occupied crossing doctrine" and Stock's alleged contributory negligence barred all of her claims. Docs. 60, 61. Stock opposed BNSF's motion, arguing that the FRSA's preemption provision did not apply because she was alleging that BNSF violated federal regulations and its own internal rules, that the occupied crossing doctrine did not apply in South Dakota, and that contributory negligence was a fact question for the jury. Doc. 84. Stock did not specify which of her claims escaped preemption; did not dispute the cases BNSF cited holding that the FRSA preempts blocked crossing, failure to warn, and reflectorization claims; and did not discuss her claim that BNSF failed to sound its horn before entering the crossing. Doc. 84.

         II. Discussion

         A. Summary Judgment Standard

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper "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). Rule 56(a) places the burden initially on the moving party to establish the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett. 477 U.S. 317, 323 (1986). Once the moving party has met that burden, the nonmoving party must establish that a material fact is genuinely disputed either by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence ... of a genuine dispute." Fed.R.Civ.P. 56(c)(1)(A)-(B). In ruling on a motion for summary judgment, the facts and inferences fairly drawn from those facts are "viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (quoting United States v. Diebold, Inc.. 369 U.S. 654, 655 (1962) (per curiam)).

         B. Claims at Issue

         Congress enacted the FRSA in 1970 "to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents." 49 U.S.C. § 20101. The FRSA gives the Secretary of Transportation authority to issue regulations governing railroad safety. 49 U.S.C. § 20103. To ensure national uniformity of railroad safety regulations, the FRSA contains a preemption provision that allows states to adopt or maintain laws relating to railroad safety "until the Secretary of Transportation . . . prescribes a regulation or issues an order covering the subject matter of the State requirement." 49 U.S.C. § 20106(a)(1)-(2). Congress, after becoming dissatisfied with the way courts were interpreting the preemption provision, passed a "clarifying" amendment in 2007. 49 U.S.C. § 20106(b); Lundeen v. Canadian Pac. Rv. Co.. 532 F.3d 682, 687-88 (8th Cir. 2008). The 2007 amendment made clear that the FRSA does not preempt state-law claims that a railroad failed to comply with a federal standard of care established by the Secretary's regulations or with the railroad's own rules that it created pursuant to the Secretary's regulations. 49 U.S.C. § 20106(b)(1)-(2).

         After the parties completed briefing on BNSF's summary judgment motion, Stock stated in a filing that she was withdrawing her "failure to warn claims, " including her claim that BNSF failed to properly reflectorize the railcar she struck. Doc. 94 at 13. It is unclear whether Stock's claim that BNSF failed to sound the train horn falls within the "failure to warn claims" she has withdrawn. In any event, BNSF is entitled to judgment as a matter of law on Stock's horn claim because it is undisputed that the train crew sounded the horn before the train entered the crossing and Stock has failed to explain how BNSF sounding its horn in the manner it did violated a federal regulation. Doc. 62 at ¶ 6; Doc. 83 at ¶ 6. BNSF is also entitled to judgment as a matter of law on Stock's common law blocked-crossing claim in paragraph 12a. of her amended complaint. Stock ignored BNSF's argument based on authority from within this District that the FRSA preempts blocked-crossing claims like the one she asserts in 12a, [5] and has therefore waived any argument to the contrary. See Satcher v. Univ. of Ark, at Pine Bluff Bd. of Trs., 558 F.3d 731, 735 (8th Cir. 2009) ("[F]ailure to oppose a basis for ...


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