Dresser v. Union Pac. R.R. Co.

• Decision Date: 14 October 2011
• Docket Number: No. S–10–645.,S–10–645.
• Parties: Rebecca L. DRESSER and Krista A. Rosencrans, appellants, v. UNION PACIFIC RAILROAD COMPANY, a corporation, appellee.
• Court: Nebraska Supreme Court

282 Neb. 537

809 N.W.2d 713

Rebecca L. DRESSER and Krista A. Rosencrans, appellants,

v.UNION PACIFIC RAILROAD COMPANY, a corporation, appellee.

No. S–10–645.

Supreme Court of Nebraska.

Oct. 14, 2011.

Syllabus by the Court

1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the court views the evidence in the light most favorable to the party against whom the judgment was granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

2. Railroads: Motor Vehicles: Negligence. A traveler on a highway, when approaching a railroad crossing, has a duty to look and listen for the approach of trains, and failure to do so without a reasonable excuse constitutes negligence.

3. Railroads: Motor Vehicles: Right–of–Way. Although railroad trains do not have an absolute right-of-way at grade crossings under all conditions, an engineer operating a train has no duty to yield the right-of-way until it appears to a reasonably prudent person that to proceed would probably result in a collision. At that time, it becomes the duty of the engineer to exercise ordinary care to avoid an accident, even to the extent of yielding the right-of-way.

4. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law.

5. Summary Judgment: Evidence: Proof. After the movant for summary judgment makes a prima facie case by producing enough evidence to demonstrate that the movant is entitled to judgment if the evidence was uncontroverted at trial, the burden to produce evidence showing the existence of a material issue of fact that prevents judgment as a matter of law shifts to the party opposing the motion.

6. Summary Judgment. Conclusions based upon guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for purposes of summary judgment.

7. Railroads: Claims. A state law claim based upon a railroad's duty to avoid a specific, individual hazard at a grade crossing is not preempted by 49 U.S.C. § 20106 (2006).

8. Summary Judgment: Affidavits. The purpose of Neb.Rev.Stat. § 25–1335 (Reissue 2008) is to provide an additional safeguard against an improvident or premature grant of summary judgment.

9. Summary Judgment: Affidavits. A Neb.Rev.Stat. § 25–1335 (Reissue 2008) affidavit that a party submits in support of a continuance need not contain evidence going to the merits of the case; rather, a § 25–1335 affidavit must contain a reasonable excuse or good cause, explaining why a party is presently unable to offer evidence essential to justify opposition to the motion for summary judgment.

Derek A. Aldridge and Corey L. Stull, of Perry, Guthery, Haase & Gessford, P.C., L.L.O., Lincoln, for appellants.

William M. Lamson, Jr., Anne Marie O'Brien, and Angela J. Miller, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee.

HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

STEPHAN, J.

Krista A. Rosencrans was severely injured when a train collided with a motor vehicle in which she was a passenger. She and her mother, Rebecca L. Dresser (collectively appellants), brought this negligence action against Union Pacific Railroad Company (Union Pacific) and the operator of the motor vehicle and her mother. Appellants appeal from an order of the district court for Lancaster County granting summary judgment in favor of Union Pacific.

I. FACTS

On March 19, 2005, 18–year–old Rosencrans was a passenger in a motor vehicle driven by 17–year–old Chanda McDonald. The vehicle was traveling north on Thayer County Road 26 near Belvidere, Nebraska, and the teenagers were talking and listening to music. About 11:40 a.m., the vehicle approached a two-track railroad grade crossing that had no automatic gate or flashing lights, but was protected by a stop sign and crossbucks on each side of the tracks. The stop sign and crossbucks were respectively located approximately 30 feet and 15 feet south of the tracks.

McDonald came to a complete stop at the stop sign. It was a clear day, and when Rosencrans looked in both directions at the stop sign, she saw a train coming down the tracks from her left. During her deposition, Rosencrans indicated on a photographic exhibit that the train was quite close to the crossing when she first saw it, but in a subsequent affidavit, she stated she could not quantify how far away the train was. Rosencrans testified she listened for but did not hear a train horn or bell. Rosencrans did not know whether McDonald looked in both directions at the stop sign. After stopping at the stop sign, McDonald drove the vehicle into the railroad crossing and onto the tracks. When Rosencrans began screaming, McDonald tried to back the vehicle off the tracks, but was unable to get off the tracks in time, and the vehicle was struck by the train. Rosencrans suffered severe injuries in the accident.

The locomotive engineer testified that he sounded the locomotive horn as the train approached the crossing. He observed the McDonald vehicle slowing as it approached the stop sign south of the crossing. The engineer testified he could see the occupants of the vehicle and noted they were not paying attention to him. The engineer testified that when he saw the vehicle pulling onto the tracks, he immediately applied the emergency brake and took cover on the floor of the locomotive. Before taking cover, the engineer noticed the nose of the vehicle was roughly in the center of the railroad tracks.

The conductor testified that he saw the McDonald vehicle approaching the railroad crossing and thought it was slowing down to stop at the stop sign. He then looked away to check for traffic from the other direction. When he looked back, the vehicle was coming into the crossing and the engineer was yelling “No, no, no.” The conductor testified that at this time, he could see the occupants of the vehicle. He heard the engineer apply the emergency brake and then took cover on the floor prior to impact.

In compliance with Federal Railroad Administration requirements, each of the three locomotives powering the train was equipped with an event recorder, similar to an airplane's “black box,” which captures information as to the speed of the train, braking applications, throttle position, and other locomotive and train functions. Data from these devices showed the train was traveling at 45 m.p.h. at the time of the accident, well within the 80–m.p.h. federally mandated speed limit for this type of train and track. Event recorder data also established the train was 189 feet past the center of the railroad crossing before the emergency brake was activated. After the brake was applied, the train traveled between 2,732 feet (.517 miles) and 2,798 feet (.530 miles) before coming to a stop.

The event recorder data also disclosed when the locomotive horn was activated. Union Pacific's expert averred that the horn was activated 4,902 feet (.928 miles) before the train came to a stop, for a period of 35 seconds. An expert retained by appellants opined that the locomotive horn was activated as one uninterrupted blast 577 feet from the center of the crossing, for a period of 10 seconds before impact. This expert also explained that the event recorder shows only that an electrical impulse was sent to the horn, and does not record whether the horn in fact sounded when the impulse was sent.

Appellants brought this negligence action against Union Pacific, McDonald, and McDonald's mother, seeking to recover medical expenses incurred by Dresser on Rosencrans' behalf and general damages sustained by Rosencrans. The operative second amended complaint alleges Union Pacific was negligent in part because the train crew failed to maintain a proper lookout, failed to slow or stop the train to avoid the collision, and failed to properly sound the locomotive horn. In its answer, Union Pacific denied that it was negligent and alleged that any injuries or damages sustained by Rosencrans were proximately caused by the negligence of McDonald. It also alleged the negligence claims were preempted by local, state, and federal laws.

Approximately 17 months after the action was commenced, Union Pacific filed a motion for summary judgment and a motion to stay discovery while that motion was pending. After conducting a hearing on the motion to stay, the district court ordered that “[a]ll discovery not related to issues raised by the pending motion for summary judgment of the defendant Union Pacific is stayed until resolution of that motion or further order of the court.” The district court later entered summary judgment in favor of Union Pacific. It determined that the claims that the train crew failed to maintain a proper lookout and failed to slow or stop the train to avoid a specific, individual hazard were preempted by the Federal Railroad Safety Act of 1970 (FRSA). ¹ It also determined there was no genuine issue of material fact on whether the train crew properly sounded the locomotive horn prior to the collision. After the court sustained a motion to dismiss the claims against McDonald and her mother without prejudice, appellants perfected this timely appeal.

II. ASSIGNMENTS OF ERROR

Appellants assign, restated and renumbered, that the district court erred in (1) finding no genuine issue of material fact existed as to whether the Union Pacific locomotive horn was sounded at the crossing; (2) dismissing the claims of negligence identified in paragraphs 8(c), (j), ( l ), (q), (r), and (t) of the second amended complaint; (3) finding no genuine issue of material fact existed as to whether the locomotive horn signalization was a proximate cause of the accident; (4) finding federal law preempted their claim that Union Pacific was negligent in failing to maintain a proper lookout and to slow or...