Nay v. BNSF Ry. Co.

Decision Date12 January 2022
Docket NumberC19-5425-BHS-MLP
PartiesTIM NAY, et al., Plaintiffs, v. BNSF RAILWAY COMPANY, et al., Defendants.
CourtU.S. District Court — Western District of Washington




This matter is before the Court on Defendants BNSF Railway Company (BNSF), National Railroad Passenger Company (d/b/a/ Amtrak), Timothy Burch, and Thomas Matlock's Motion for Summary Judgment (Defendants' Motion”). (Defs.' Mot. (dkt. # 71).) Defendants' Motion seeks summary judgment in their favor on claims by Plaintiffs Tim Nay, in his capacity as personal representative of the estate of Maria Gonzalez Torres (Ms. Gonzalez Torres), and Gregory Price, in his capacity as guardian ad litem of minor I.G., for wrongful death and survival arising from a BNSF and Amtrak (“Railroad Defendants) train collision that resulted in the death of Ms. Gonzalez Torres. (Id. at 1-2.) Plaintiffs oppose Defendants' Motion (Pls.' Resp. (dkt. # 86)) and Defendants filed a reply (Defs.' Reply (dkt. # 92)). Neither party requested oral argument.

Having considered the parties' submissions, the governing law and the balance of the record, the Court recommends that Defendants' Motion (dkt. # 71) be GRANTED in part and DENIED in part, as further explained below.

A. Factual Background

Beginning in approximately May 2016, Ms. Gonzalez Torres and her employees began cleaning several houses located on Southwest 5th Avenue, in Camas, Washington. (Yates Decl. (dkt. # 72) at ¶ 2, Ex. A (dkt. # 72-1) at 4 (Tedoro Dep. at 15:4-16:13).) On May 16, 2017, at approximately 10 a.m., Ms. Gonzalez Torres drove her vehicle with her minor son I.G. in a southwest direction along Southwest Viola, a private road that connects to Southwest 5th Avenue, to reach one of the homes that she cleaned. (Am. Compl. (dkt. # 31) at ¶¶ 14, 18; Yates Decl. at ¶ 3, Ex. B (dkt. # 72-2) at 6; Young Decl. (dkt. # 75) at ¶¶ 9, 12, Ex. 5 (dkt. # 75-5) at 4.) At the intersection of Southwest 5th Avenue and Southwest Viola there is an at-grade, unguarded private railroad crossing (“the Crossing”), which allows for ingress and egress for homes located on Southwest 5th Avenue. (Am. Compl. at ¶¶ 19-20; Flynn Decl. (dkt. # 73) at ¶ 7, Ex. 2 (dkt. # 73-2) at 10); see also Heikkila Decl. (dkt. # 74) at ¶ 9, Ex. 2 (dkt. # 74-2) at 4, 8-9.)

As Ms. Gonzalez Torres drove along Southwest Viola, she eventually encountered the Crossing. (Am. Compl. at ¶ 15.) The Crossing did not have any active warnings, such as bells, flashing lights, or crossing arms, but did have a stop sign posted. (Am. Compl. at ¶¶ 18-20; Young Decl. at ¶¶ 9, 12, Ex. 5 at 4.).) On that day, the weather was “partly sunny,” and the road was damp from a recent rain shower. (Young Decl. at ¶¶ 9, 12, Ex. 5 at 4.) Ms. Gonzalez Torres was speaking with her sister on a cellphone as she approached the Crossing. (Yates Decl. at ¶¶ 4-6, Ex. C (dkt. # 72-3) at 4-5 (I.G. Dep. at 78:5-25, 85:19-86:7), Ex. E (dkt. # 72-5) at 2.)

Ms. Gonzalez Torres did not have any hearing or visual impairments. (Yates Decl. at ¶ 3, Ex. B at 6.)

As Ms. Gonzalez Torres attempted to navigate the Crossing, her vehicle collided with a westbound Amtrak passenger train near the left front tire. (Am. Compl. at ¶ 16; Young Decl. at ¶¶ 9, 12, Ex. 5 at 3.) Ms. Gonzalez Torres was declared dead at the scene, and I.G. was transported by ambulance to the hospital with minor physical injuries. (Young Decl. at ¶¶ 9, 12, Ex. 5 at 3.) Ms. Gonzalez Torres's vehicle did not come to a complete stop before entering the Crossing. (Id. at 5-9.) The crash data retrieval report from Ms. Gonzalez Torres's vehicle indicates she slowed from 16 miles per hour to three miles per hour in the last five seconds before the collision. (Young Decl. at ¶¶ 9-12, Ex. 4 (dkt. # 75-4) at 7, 13.)

Defendant Burch was the train's engineer, and Defendant Matlock was the train's assistant conductor. (Am. Compl. at ¶ 17.) Two or three seconds before the collision, Defendant Matlock sounded the train's horn because he saw Ms. Gonzalez Torres's vehicle approach the Crossing. (Yates Decl. at ¶ 9, Ex. H (dkt. # 72-8) at 5 (Matlock Dep. at 30:23-31:4).) Defendant Matlock applied the train's air braking system upon seeing Ms. Gonzalez Torres's vehicle.[1](Yates Decl. at ¶¶ 8-9, Ex. G (dkt. # 72-7) at 2, Ex. H at 4 (Matlock Dep. at 27:17-28:7).) At the time of the collision, the train was traveling at approximately 70 miles per hour.[2] (Yates Decl. At ¶¶ 8-9, Ex. G at 2, Ex. H at 4 (Matlock Dep. at 27:11-13); see also Heikkila Decl. at ¶ 9, Ex. 2 at 8.)

Ms. Gonzalez Torres regularly drove her employees to work locations in operating her cleaning business. (Yates Decl. at ¶ 2, Ex. A at 5 (Tedoro Dep. at 18:23-25).) Ms. Gonzalez Torres's cleaning employee, Martha Tedoro, testified that Ms. Gonzalez Torres was familiar with the Crossing, had traveled across the railroad tracks several times, but that she never stopped at the stop sign posted at the Crossing. (Yates Decl. at ¶ 2, Ex. A at 5 (Tedoro Dep. at 15:4-16:13, 19:3-10).) I.G. testified that he could not recall whether Ms. Gonzalez Torres ever stopped at the stop sign at the Crossing. (Yates Decl. at ¶ 4, Ex. C (I.G. Dep. at 75:25-2, 79:5-7).)

The Clark County Sheriff's Office (“CCSO”) investigated the scene of the accident, analyzing event recorder data from Ms. Gonzalez Torres's vehicle and video footage from the Amtrak train. (Young Decl. at ¶¶ 9, 12, Ex. 5 at 3-11.) Per the CCSO report, there were two stop signs posted prior to the Crossing. (Young Decl. at ¶¶ 9, 12, Ex. 5 at 4.) The first sign was a private sign posted on the east side of Southwest Viola about 25 feet north of the railroad tracks that read, “Stop Proceed with Caution.” (Id.) The second sign was a traditional stop sign posted by Railroad Defendants on the west side of Southwest Viola approximately 10 feet north of the railroad tracks. (Id.)

In the course of the CCSO investigation, Detective Young took photographs of the railroad tracks from the vantage point of where a driver is required to stop at the traditional stop sign on Southwest Viola Street at the Crossing. (Young Decl. at ¶¶ 5, 7, Ex. 2 at 2, Ex. 3 (dkt. # 75-3) at 2.) The CCSO report noted that the “railroad tracks run east west and are straight and level with excellent sight distance. At the crossing on [Southwest] Viola looking east I measured the sight distance is approximately a half a mile ....” (Young Decl. at ¶ 9, 12, Ex. 5 at 4.) The report additionally notes that, per review of video from the train, that the train's horn was sounded, and that the emergency braking system was engaged once Ms. Gonzalez Torres's vehicle entered the Crossing. (Id. at 5.)

The CCSO investigation ultimately concluded that Ms. Gonzalez Torres failed to stop at the stop sign located at the Crossing. (Young Decl. at ¶¶ 9-12, Ex. 5 at 5-9; Payne Decl. (dkt. # 76) at ¶ 12.) Based on the CCSO's investigation, the event data recorder, and video from the train, the CCSO determined that Ms. Gonzalez Torres's failure to stop at the posted stop sign resulted in her being “the proximate cause of the collision event.” (Young Decl. at ¶¶ 9, 12, Ex. 5 at 11.)

B. Expert Reports
i. Plaintiffs' Experts

Due to the nature of the accident, Plaintiffs engaged Brandon Ogden, a railway operations consultant, and Joellen Gill, a human-factors engineering consultant, to provide expert testimony regarding Railroad Defendants train operations and rule interpretations. (Order (dkt. # 95) at 2; see also Pls.' Resp. at 1-4.) The parties are familiar with the facts pertaining to both Mr. Ogden and Ms. Gill's expert testimonies and this Court has previously laid out the background of both Mr. Ogden and Ms. Gill's expert reports in detail in its previous Order on Defendants' Motion to Strike Expert Disclosures and Proposed Testimonies.[3] (See Order (dkt. # 95) at 2-7.)

In summary, and relevant to the instant matter, Mr. Ogden's expert report concluded that Railroad Defendants: (1) failed to give a proper audible warning at the Crossing because Defendant Matlock did not blow the horn until about a second prior to the collision and there were no active or audible warning devices at the Crossing, (2) provided an improper visual warning due to impaired sight distances at the Crossing; and (3) allowed several dangerous and hazardous conditions to exist at the Crossing. (Ogden Decl. (dkt. # 89) at ¶ 2, Ex. 1 (dkt. # 89-1) at 7, 10.) Mr. Ogden additionally found that Defendants violated federal regulations, their own operating rules, and industry standards of care in operating the train over the Crossing. (Id. at 19-27.) Ms. Gill's expert report documented several system design factors of Railroad Defendants' safety or risk management program for the Crossing. (Gill Decl. (dkt. # 88) at ¶ 2, Ex. 1 (dkt. # 88-1) at 5, 11.) Ms. Gill concluded that the Crossing was “extremely dangerous for drivers,” that Railroad Defendants should have known of the conditions at the Crossing before Ms. Gonzalez Torres's collision, and that Railroad Defendants' failures to remedy the conditions at the Crossing were “gross violations” of safety and risk management. (Id.)

ii. Defendants' Experts

Defendants secured James Flynn, a consulting engineer with experience in vehicular accident reconstruction, and Brian Heikkila, a railroad consultant, to provide expert reports on Ms. Gonzalez Torres's collision. (Flynn Decl. at ¶¶ 2, 6-7, Ex. 2 at 1-13; Heikkila Decl. at ¶¶ 1, 9, Ex. 2 at 1-14.)

1. James Flynn

Mr Flynn has worked as a consulting engineer since 1985 and has provided expert testimony in over 100 cases in state and federal court. (Flynn Decl. at ¶¶ 2-5, Ex. 1 (dkt. # 73-1) at 3.) Mr. Flynn has...

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