Miller v. Union Pac. R.R. Co.

Decision Date12 March 2021
Docket Number8:18-CV-568
Citation526 F.Supp.3d 494
Parties Benton W. MILLER, Plaintiff, v. UNION PACIFIC RAILROAD COMPANY, a Delaware corporation; Swift Transportation Company of Arizona, LLC, a Delaware corporation; Abdikadir Mohamed, Abdinasir Dirie, and Swift Transportation Co. of Arizona, LLC, a Delaware limited liability company, Defendants.
CourtU.S. District Court — District of Nebraska

William Kvas, Hunegs, Leneave Law Firm, Wayzata, MN, for Plaintiff.

Kristina J. Kamler, Stephen G. Olson, II, Engles, Ketcham Law Firm, Omaha, NE, Terrance O. Waite, Waite, McWha Law Firm, North Platte, NE, for Defendants Abdikadir Mohamed, Swift Transportation Co. of Arizona, LLC.

Stephen G. Olson, II, Engles, Ketcham Law Firm, Omaha, NE, Terrance O. Waite, Waite, McWha Law Firm, North Platte, NE, for Defendant Abdinasir Dirie.


Brian C. Buescher, United States District Judge

This matter is before the Court on four motions for summary judgment. Filing 134; Filing 158; Filing 195; Filing 198.

This case arises out of a collision between a train and a semi-truck. Filing 54 at 4. Plaintiff, Benton Miller, the conductor on the train involved in the collision, brings the present action for damages stemming from the collision against defendant Union Pacific Railroad Company ("Union Pacific") under the Federal Employers’ Liability Act ("FELA"), 45 U.S.C. § 51 et seq., and against defendants Swift Transportation Company ("Swift"), Abdikadir Mohamed, and Abdinasir Dirie, under theories of common law negligence and vicarious liability. Filing 54. Union Pacific, Swift, and Mohamed move for summary judgment on Miller's claims against them. Filing 134; Filing 195. Miller moves for summary judgment on Swift and Mohamed's contributory negligence defense, and Union Pacific joins his motion. Filing 158; Filing 167. Union Pacific also moves independently for summary judgment against Swift and Mohamed, asserting Mohamed was solely at fault for the collision. Filing 198.


On December 21, 2015, around 1:00 a.m., a train operated by defendant Union Pacific collided with a semi-truck at a private rail crossing near Sidney, Nebraska. Filing 54 at 4; Filing 182-3; Filing 194-1 at 3. Plaintiff, Benton Miller, was Union Pacific's conductor aboard the train. Filing 54 at 4. Union Pacific's engineer, Sam Kinsinger, operated the train with Miller. Filing 136-2 at 28. Just prior to the collision, the train was traveling eastbound at about sixty-nine miles per hour, which was within the maximum speed (seventy miles per hour) for that section of track, as provided by federal regulations. Filing 194-1 at 5. Video from the train's track image recorder ("TIR") indicates there was some fog in the area. Filing 194-1 at 5. Miller estimates he and Kinsinger were only two to three hundred meters from the truck when they first saw it on the tracks. Filing 136-2 at 36. Train data recorder analysis indicates Kinsinger actuated the train's emergency braking system approximately one second, or one hundred feet, prior to the train impacting the truck. Filing 194-1 at 6.

Defendant Abdinasir Dirie owned the truck and provided transportation services for Swift pursuant to a contractor agreement between them. Filing 54 at 4; Filing 59 at 3. Under the agreement, when providing services for Swift, Dirie was to operate under the operating authority granted to Swift by the Department of Transportation ("DOT") and to display Swift's requisite identification accordingly. Filing 197-2 at 4, 7. The agreement also provided that while Dirie was operating under Swift's authority, Swift "shall have exclusive possession, control and use of the equipment during the term of [the] agreement." Filing 197-2 at 4. Dirie was further required to equip trucks he used when transporting for Swift with a Qualcomm communications system that was compatible with Swift's system, allowing Swift to communicate with drivers directly. Filing 197-2 at 4, 10.

Defendant Abdikadir Mohamed was Dirie's employee and drove the truck on the night of the collision, hauling goods for Swift under the contractor agreement. Filing 59 at 3; Filing 136-11 at 30-33. Mohamed was accompanied in the truck by his co-driver, Abdi Aden. Filing 136-11 at 12. Mohamed stated in his deposition that he was following global positioning system ("GPS") directions leading up to the collision. Filing 136-11 at 38-41. He claims the GPS directed him to turn right as he approached the tracks, at which point he turned onto the tracks themselves, believing them to be a road, and the truck became stuck. Filing 136-11 at 40-45. He also noted the roads were clear that night, though there was snow on the ground to the sides of the road, and it was foggy. Filing 136-11 at 20. Mohamed denied seeing any signs at the crossing before proceeding onto the tracks, but it is undisputed that signage, including stop, railroad crossing, no trespassing, and other signs, were present. Filing 136-11. Mohamed estimates the truck was on the tracks prior to the collision for ten to fifteen minutes, during which time he and his co-driver, who had been sleeping, were able to exit the truck and move a safe distance away. Filing 136-11 at 17-18. Mohamed stated he called 911 less than one minute after becoming stuck, but a translation and recording of the 911 call indicate the collision occurred less than a minute after the call began. Filing 136-11 at 17; Filing 136-15 at 2-3.

Miller is now suing Defendants for damages stemming from the collision, alleging the incident caused him mental and physical injury resulting in, among other things, lost wages and earning capacity. Filing 54. Miller alleges Mohamed is liable for his own common-law negligence, Dirie is vicariously liable as Mohamed's employer, and Swift is vicariously liable because Dirie was an agent/employee of Swift. Filing 54 at 5-7. Miller also brings a negligence claim under the FELA against Union Pacific, alleging it failed to provide a safe place to work because of certain inadequacies with the crossing. Filing 54 at 7. Swift and Mohamed assert that Miller was contributorily negligent in causing his own injuries and that his injuries were caused by a third-party, namely Union Pacific. Filing 59 at 5. Union Pacific, Swift, and Mohamed stipulated to dismissal of their cross-claims against each other for property damages, but Union Pacific still has a claim for indemnification and contribution pending against the trucking defendants for any liability it incurs on Miller's FELA claim. Filing 63; Filing 67; Filing 131.


There are now four separate motions for summary judgment pending before the Court. Filing 134; Filing 158; Filing 195; Filing 198. Union Pacific moves for summary judgment on Miller's FELA claim, arguing Miller cannot fulfill the elements of a negligence claim under the FELA. Filing 134; Filing 135. Miller moves for summary judgment on Swift and Mohamed's affirmative defense of contributory negligence, arguing the defense is preempted, and the evidence does not support their contention that Miller was negligent. Filing 158; Filing 159. Union Pacific joins Miller's motion against Swift and Mohamed, arguing for preemption. Filing 167; Filing 168. Union Pacific also independently moves for summary judgment against Swift and Mohamed. Filing 198. Swift and Mohamed move for summary judgment against Miller, in whole or in part, on a number of grounds. Filing 195; Filing 196. The Court will address each motion below.

A. Summary Judgment Standard

"Summary judgment is appropriate when the evidence, viewed in the light most favorable to the nonmoving party, presents no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Garrison v. ConAgra Foods Packaged Foods, LLC , 833 F.3d 881, 884 (8th Cir. 2016) (citing Fed. R. Civ. P. 56(c) ). "[S]ummary judgment is not disfavored and is designed for every action." Briscoe v. Cnty. of St. Louis , 690 F.3d 1004, 1011 n.2 (8th Cir. 2012) (internal quotation marks omitted) (quoting Torgerson v. City of Rochester , 643 F.3d 1031, 1043 (8th Cir. 2011) (en banc)). In reviewing a motion for summary judgment, the Court will view "the record in the light most favorable to the nonmoving party ... drawing all reasonable inferences in that party's favor."

Whitney v. Guys, Inc. , 826 F.3d 1074, 1076 (8th Cir. 2016) (citing Hitt v. Harsco Corp. , 356 F.3d 920, 923–24 (8th Cir. 2004) ). Where the nonmoving party will bear the burden of proof at trial on a dispositive issue, " Rule 56(e) permits a proper summary judgment motion to be opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves." Se. Mo. Hosp. v. C.R. Bard, Inc. , 642 F.3d 608, 618 (8th Cir. 2011) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986) ). The moving party need not produce evidence showing "an absence of a genuine issue of material fact." Johnson v. Wheeling Mach. Prods. , 779 F.3d 514, 517 (8th Cir. 2015) (citing Celotex , 477 U.S. at 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 ). Instead, "the burden on the moving party may be discharged by ‘showing’ ... that there is an absence of evidence to support the nonmoving party's case." St. Jude Med., Inc. v. Lifecare Int'l, Inc. , 250 F.3d 587, 596 (8th Cir. 2001) (quoting Celotex , 477 U.S. at 325, 106 S.Ct. 2548 ).

In response to the moving party's showing, the nonmoving party's burden is to produce "specific facts sufficient to raise a genuine issue for trial." Haggenmiller v. ABM Parking Servs., Inc. , 837 F.3d 879, 884 (8th Cir. 2016) (quoting Gibson v. Am. Greetings Corp. , 670 F.3d 844, 853 (8th Cir. 2012) ). The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts, and must come forward with specific facts showing that there is a genuine issue for trial." Wagner v. Gallup, Inc. , 788 F.3d 877, 882 (8th Cir. 2015) (quoting Torgerson , ...

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