United States District Court, D. South Dakota, Southern Division
OPINION AND ORDER GRANTING MOTION FOR SUMMARY
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE.
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.
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
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.
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.
railcars the crew picked up were on the NAPA line. Doc. 62 at
¶ 3; Doc. 83 at ¶ 3; ASMF 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. 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. 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.
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.
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.
Summary Judgment Standard
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)).
Claims at Issue
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).
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,
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 ...