Otten v. BNSF Ry. Co.
| Decision Date | 13 February 2023 |
| Docket Number | 22-8025 |
| Parties | TIM OTTEN, Plaintiff - Appellant, v. BNSF RAILWAY COMPANY; UNION PACIFIC RAILROAD COMPANY, Defendants - Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D.C. No. 2:20-CV-00103-ABJ) (D. Wyo.)
Before McHUGH, KELLY, and EID, Circuit Judges.
Thermo Fluids, Inc. dispatched Tim Otten to retrieve oil from a railyard in Wyoming. After finding the oil barrel empty, Mr Otten, driving a tanker truck, sought to exit the railyard. As Mr. Otten approached a track crossing, so too did a Burlington Northern Santa Fe ("BNSF") train. Mr Otten attempted to cross the tracks without first stopping looking, or listening for a train. A collision ensued.
Mr. Otten filed suit, alleging negligence against BNSF and Union Pacific, an owner of the railyard. Mr. Otten contended poor design of the rail crossing prevented him from squaring his truck to the crossing to look for a train. BNSF and Union Pacific moved for summary judgment, arguing Mr. Otten violated 49 C.F.R. § 392.10(a)'s requirement that a truck stop, look, and listen before crossing a rail track and that this violation was (1) negligence per se and (2) the proximate cause of the accident.
The district court granted summary judgment in accord with BNSF's and Union Pacific's arguments. Mr. Otten appeals. Procedurally, Mr. Otten argues the district court abused its discretion by relying on arguments raised for the first time by BNSF and Union Pacific in their reply brief on summary judgment. As to the substance of the district court's reasoning, Mr. Otten contends § 392.10(a) did not apply to him, it was impossible for him to comply with § 392.10(a) based on the configuration of the rail crossing, and a Wyoming court would not treat any violation of § 392.10(a) as negligence per se or the only proximate cause of the collision.
For five reasons, we affirm the district court's grant of summary judgment. First, BNSF's and Union Pacific's reply brief on summary judgment permissibly expanded upon opening brief arguments and addressed arguments advanced by Mr. Otten in his response brief. Second, Mr. Otten waived his argument that 49 C.F.R. § 392.10(a) did not apply. Third, although the rail crossing was not ideally designed, the crossing configuration did not prevent Mr. Otten from complying with the regulation. Fourth, the district court did not abuse its discretion when it concluded a violation of § 392.10(a) would amount to negligence per se under Wyoming law. Fifth, Mr. Otten's failure to stop, look, and listen was an intervening and unforeseeable cause of the accident, relieving BNSF and Union Pacific of any liability.
In 2017, Thermo Fluids, Inc. employed Mr. Otten as a truck driver. At that time, Thermo Fluids, Inc. held a contract with BNSF to remove oil from railyards in Wyoming. On the date of the accident, Thermo Fluids, Inc. dispatched Mr. Otten to remove oil from a BNSF railyard in Wright, Wyoming.
To access the barrel where BNSF stored the oil, a vehicle needed to enter the railyard from Hilight Road, cross three main-line tracks, and make a left turn to the north onto a dirt road that ran parallel to main-line track 1 ("M1"). From the crossing, it was just under a quarter mile to the oil barrel. Of additional note, a pair of curved BNSF "Wye" tracks ran just to the east of the dirt road that provided access to the oil barrel. An expert report offered by Mr. Otten identified the distance between the M1 track and the closest Wye track as twenty-six feet.
Prior to the date of the accident, Mr. Otten visited the Wright, Wyoming, railyard on only one prior occasion. On that first occasion, BNSF provided Mr. Otten an escort to lead him through the railyard, to the oil barrel, and back out of the railyard. On the day of the accident, BNSF did not provide Mr. Otten an escort to guide him through the railyard. Without an escort, Mr. Otten followed the previous route to the oil barrel, entering the yard from the west off of Hilight Road, crossing the three main tracks, making a left onto the dirt road, and traveling northward to the oil barrel. Upon arriving at the oil barrel, Mr. Otten discovered it was empty. He called BNSF and was informed BNSF had not yet loaded the barrel and that he would need to return another day to retrieve the oil.
Mr. Otten turned his truck around, looking to the north to see if a train was coming before retracing his steps to exit the railyard. Mr. Otten drove south on the dirt road for twenty to thirty seconds before reaching the crossing point for the main-line tracks. During those twenty to thirty seconds, Mr. Otten did not look or listen for any oncoming trains.[1] As Mr. Otten approached the crossing, a BNSF train traveling southbound on the M1 track also approached the crossing. The BNSF train was traveling well under the speed limit for the section of track and blew its horn several times as it approached the crossing.[2] Mr. Otten did not come to a stop or markedly slow his truck as he reached the crossing point. Rather, Mr. Otten turned directly onto the crossing, driving into the path of the BNSF train. The front left corner of the train struck the front right side of Mr. Otten's truck. In his operative complaint, Mr. Otten alleges that, as a result of the collision, he suffers from "debilitating, progressive and permanent bodily injuries to his head, body and limbs, including facial laceration, traumatic brain injury, spinal, shoulder, hip, leg, lung, [and] ribs" and that his injuries may necessitate a permanent caretaker. App. at 68.
Mr. Otten filed a complaint against BNSF in state court, raising a claim of negligence.[3] BNSF removed the case to federal court. Mr. Otten filed an amended complaint, raising a claim of negligence against BNSF and a claim of negligence against Union Pacific. BNSF and Union Pacific filed answers to the amended complaint, and the case proceeded to discovery.
BNSF and Union Pacific filed a joint motion for summary judgment. They argued that Mr. Otten violated 49 C.F.R. § 392.10(a) by not stopping, looking, and listening before crossing the track and that said violation was negligent per se.[4] BNSF and Union Pacific further argued Mr. Otten's negligence per se was the proximate cause of the accident. In support of these arguments, BNSF and Union Pacific cited a mix of Wyoming case law regarding negligence, proximate cause, and the impact of regulatory violations, as well as non-Wyoming cases involving vehicle/train collisions.
In opposing summary judgment, Mr. Otten scantly cited 49 C.F.R. § 392.10, identifying it only in response to a few statements of undisputed facts by BNSF and Union Pacific. Mr. Otten never suggested § 392.10(a) did not apply or that he had not violated the regulation. Rather, Mr. Otten raised several arguments for why any violation of § 392.10(a) did not compel granting summary judgment in BNSF's and Union Pacific's favor. First, Mr. Otten contended that, under Wyoming law, when a court finds that a plaintiff advancing a negligence claim violated a regulation, it has discretion to conclude the violation is evidence of negligence rather than negligence per se and that Wyoming courts favor submitting the issue of negligence to a jury. Second, Mr. Otten argued any regulatory violation he committed was one of two proximate causes of the accident-the design of the rail crossing being the other-such that the issue of comparative negligence should be submitted to a jury. Third, Mr. Otten contended that if he violated § 392.10(a), the violation should be excused because, given the spacing between and configuration of the M1 and Wye tracks, it was impossible for him to comply with the regulation and square up his truck to the track to look for an approaching train.
In reply, BNSF and Union Pacific argued a Wyoming court would find this regulatory violation negligence per se because 49 C.F.R. § 392.10(a) provided a "positive and definite standard of care." Id. at 212 (quoting Pinnacle Bank v. Villa, 100 P.3d 1287, 1291 (Wyo. 2004)). Next, BNSF and Union Pacific argued the temporal proximity between Mr. Otten's failure to stop, look, and listen, and the collision, made his violation of § 392.10(a) the proximate cause of the accident. Finally, BNSF and Union Pacific countered Mr. Otten's impossibility argument by noting Mr. Otten had the burden on the issue, his evidence of impossibility was speculative and indefinite, and there was evidence Mr. Otten could have complied with the regulation.
The district court granted the motion for summary judgment. The district court concluded Mr. Otten violated 49 C.F.R. § 392.10(a) by not stopping, looking, and listening before attempting to cross the M1 track. The district court further concluded § 392.10(a) set forth a "positive and definite standard of care" and a Wyoming court would apply negligence per se to Mr. Otten's violation of the regulation rather than treating it as mere evidence of negligence. From this, the district court held that Mr. Otten's violation of the regulation was an intervening proximate cause, was not foreseeable, and thus discharged any liability on the part of BNSF or Union Pacific. Finally, the district court rejected Mr. Otten's impossibility argument on the basis that nothing prevented him from at least stopping and listening, which would have alerted him to the approaching train.
On appeal, Mr. Otten raises five arguments, one procedural and four substantive, for reversing the district court's grant of summary judgment. On the procedural front, Mr. Otten contends the district court abused its discretion because its grant of summary judgment rests on several...
To continue reading
Request your trial