916 F.Supp.2d 945 (D.S.D. 2013), Civ. 10-4022-JLV, Skrovig v. BNSF Railway Co.
| Date | 16 January 2013 |
| Docket Number | Civ. 10-4022-JLV. |
| Citation | 916 F.Supp.2d 945 |
| Parties | Tami SKROVIG, as Personal Representative of the Estate of Thomas Jeffrey Skrovig, deceased, Plaintiff, v. BNSF RAILWAY COMPANY, a Delaware corporation, Defendant. |
| Court | U.S. District Court — District of South Dakota |
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ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW OR NEW TRIAL
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...
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