Nat'l R.R. Passenger Corp. v. Cimarron Crossing Feeders

Decision Date14 November 2018
Docket NumberNo. 18-1081-JTM,No. 16-1094-JTM,16-1094-JTM,18-1081-JTM
PartiesNATIONAL RAILROAD PASSENGER CORP. and BNSF RAILWAY COMPANY, Plaintiff, and EVERETT OWEN, et al., Intervenors v. CIMARRON CROSSING FEEDERS, Defendants. MICHAEL LEE ROUNDS, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORP., doing business as Amtrak, et al., Defendants.
CourtU.S. District Court — District of Kansas

On March 13, 2016, employees of Cimarron Crossing Feeders left a large feed truck unattended. The truck rolled down a hill, crossed a highway, and smashed into train tracks owned by BNSF Railway. The Cimarron employees retrieved the truck — but told no one of the accident, or the fact that the truck had bent the rails about nine inches out of alignment. Shortly after midnight the next day, an Amtrak passenger train reached the misalignment and derailed.

Amtrak and BNSF have sued Cimarron for negligence, recklessness, and trespass. Several passengers, intervening in this action and presenting a separate claim (Rounds v. National R.R. Passenger Corp., No. 18-1081-JTM (D. Kan.)), have made claims against Cimarron, but also have advanced various claims against Amtrak and BNSF. Cimarron denies liability, contends that Amtrak and BNSF were acting as a joint venture, and argues that their fault contributed to the accident. The matter is scheduled for trial on liability issues to begin December 6, 2018.

The present Order addresses Motions for Summary Judgment filed by plaintiffs Amtrak and BNSF (Dkt. 398, 400, 402, 463) as to the claims made against them, as well as various related motions. (Dkt. 432, 436, 438, 478, 480, 482). The court denies plaintiffs' appeal (Dkt. 468) from the decision of the Magistrate Judge to permit plaintiffs to add to the Pretrial Order (Dkt. 461) claims by the Intervenor that the Amtrak locomotive used a defective headlight. While recognizing a close question, the court also denies plaintiffs' request for sanctions against Intervenors' counsel for the submission of evidence in bad faith. The court otherwise grants plaintiffs' motions.

There is nothing in the voluminous record to establish any legal fault on the part of Amtrak or BNSF. The only party potentially liable for damages from the derailment is Cimarron.

Findings of Fact

Summary judgment is proper where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir. 1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir. 1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir. 1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in Matsushita).One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).1

The morning before the accident, two Cimarron employees were working on the company's feed lot, which is located north of Highway 50 and the BNSF rail line. Kevin Ornelas was operating the feed mill and Arturo Carillo was operating a feed truck, a 2004 Kenworth grain hauling truck, which had an empty weight of at least 26,900 lbs. and had gross vehicle weight range of 26,000 to 33,000 pounds.

Carillo had made several feed lot runs that morning before Ornelas asked him for help unplugging a "soak leg" that had become clogged on the feed mill. Ornelas needed Carillo to open and close a gate at ground level that runs corn up into the soak tanks, so that Ornelas, standing up on a catwalk over the soak tanks, could make sure the downspout was clean.

Carillo parked the truck next to the soak tanks and grain elevators facing south in the direction of the railroad track. As Carillo left the truck to help Ornelas, it was parked on an incline facing in a downhill direction away from the mill and toward the highway and railroad tracks.2

Some time between 10:00 and 11:00 a.m., Ornelas, with a clear view of the truck from atop the soak tank catwalk, watched the truck start to roll and yelled down to Carillo that the truck was rolling away.

Carillo went to get his personal truck, losing sight of the run-away feed truck in the process.

Ornelas saw the runaway feed truck roll down the hill, across Highway 50, into the ditch running parallel to the train tracks on the south side of the highway, up the opposite side of the ditch, and then back down into the ditch where it stopped, still facing south. The momentum of the thirteen-ton truck was enough that when it crossed the highway into the ditch it became airborne.

In the ditch, the truck's undercarriage bottomed out before it continued, striking the rail track roadbed. The impact caused a displacement of between seven to ten (but most typically described as a nine) inch displacement of the tracks.

The Kansas Highway Patrol later documented the continuous path of travel of the Cimarron feed truck, the tire mark evidence matching the truck to the railroad track bed damage, and, most importantly, the impact of the truck's bumper with the railroad roadbed causing the railroad tracks to be pushed to the south. The truck hit the track roadbed at a perpendicular angle and stopped when the front bumper struck the railroad roadbed on the north side of the track, shifting the railroad ties and track to the south.

To reach the feed truck, Carillo drove his personal truck across Highway 50, crossed the railroad tracks at a grade crossing on the south side of the highway, and turned right on a dirt road on the south side of, and running parallel to, the tracks. Carillo parked his personal truck on the dirt road directly across the tracks from where the Cimarron feed truck had come to rest, and walked right over the damaged track.

Carillo found the still-running feed lot truck in the ditch, sitting perpendicular to the railroad tracks. He moved the truck away from the tracks and drove it back up to the feed lot where he told Rita Tobyne, Cimarron's head feed truck driver, what happened. He asked her to call feed lot manager Maynard Burl and tell him the feed truck had rolled to the other side of Highway 50. Tobyne said she was not going to call Burl.

Carillo then asked Ornelas to call Burl, which Ornelas did, asking Burl to come out to the feed lot. Ornelas has testified that, while they were waiting for Burl to arrive, he took Carillo back down to the railroad tracks to retrieve his personal vehicle.

At the time the truck hit the BNSF tracks, there was a railroad crossing sign near where the truck impacted the tracks, which also contains a blue sign with a 1-800 phone number to report problems or emergencies to BNSF.

Ornelas saw the sign as he crossed over the tracks and was aware of the sign, but neither he nor any other Cimarron employee called the 1-800 phone number to report the truck runaway incident.

When Burl came to the feed lot, Ornelas showed him the path the truck had taken down the hill, and told him that the truck had gone across the highway and through theditch on the south side of the highway, and pointed him to where the truck had come to rest.

Carillo also tried to tell Burl about the path that the truck had taken and where it had come to rest, but Burl said he did not care and that Carillo would probably get fired.

Burl observed the path that the truck left through the field from the mill to the highway. After being told what had happened, Burl did not go down to examine the railroad tracks and did not ask either Ornelas or Carillo whether there had been any damage to the tracks.

Instead, he yelled at Carillo that he did not care that the truck had crossed the highway, criticized Ornelas for asking Carillo to help unclog the soak leg, pointed out to both men that the truck had likely suffered several thousand dollars in damage, and told Carillo that he would probably get fired or written up. Burl straightened the feed truck's bent muffler, and went home.

Later in the afternoon Cimarron assistant manager Jim Fairbank came to the mill. Ornelas told him that the feed truck had rolled down the hill and across the highway, and Fairbank laughed about it and made no effort to see for himself where it had rolled.

No one at Cimarron did any further investigation, or contacted the railroad, law enforcement, or any other party to inform them of the truck roll-away incident.

Earlier the same morning, at about 7:26 a.m. (some three hours before the roll away event) a BNSF train with lead locomotive BNSF 3917 passed over the location where the Cimarron truck hit the...

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